Chan Ka Yan Karen v. Secretary for The Civil Service
|
HCAL 1754/2025 [2026] HKCFI 3119 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1754 OF 2025 ________________
________________
___________________ J U D G M E N T ___________________ A. Introduction 1.Memory is sometimes fallible, but that does not mean every memory is fallible. Similarly, a person may be genuine when stating something incorrectly, but that does not mean every incorrect statement is a genuine mistake. Those distinctions underpin the underlying impugned decision in this case. 2.By Form 86 dated 7 August 2025, the Applicant challenges the decision (“Dismissal Decision”) made by the Secretary for the Civil Service (“SCS”) and contained in a letter dated 7 May 2025, directing that the Applicant be punished by dismissal under section 10 of the Public Service (Administration) Order (“PS(A)O”). 3.By way of relief, the Applicant seeks an order of certiorari to bring up and quash the Dismissal Decision. 4.I gave directions to bring the matter to a ‘rolled-up’ hearing on 10 December 2025. At the hearing, the Applicant was represented by Mr Anson Wong of Counsel, and the SCS was represented by Mr Justin Lam of Counsel and Mr Alvin Hor, Senior Government Counsel. 5.At the end of the hearing, I reserved my decision to be handed down subsequently. 6.This is my Judgment. B. Factual Background 7.The Applicant joined the Immigration Department (“ImmD”) as an Immigration Assistant on 23 February 2009. At the time of the Decision, the Applicant was a Senior Immigrant Assistant. 8.On 1 September 2019 at around 00:17, the Applicant was arrested at Prince Edward MTR Station in relation to an incident which occurred on the night of 31 August 2019 (“31 August Incident”). 9.The Applicant remained silent under caution, and was released unconditionally on the same day. 10.On 7 August 2020, the Applicant was informed by the Police that the case against her had concluded and no charges would be laid. 11.But, later, between 23 and 25 February 2021, the Applicant was interviewed by ImmD officers (“Interviews”) with regard to whether she had misconducted herself in the 31 August Incident. 12.On 23 May 2023, ImmD informed the Applicant that it was contemplating an inquiry into the alleged misconduct under section 10 of the PS(A)O. 13.On 11 December 2023, an inquiry hearing was held before an Inquiry Committee. The inquiry was made into the following charges faced:
14.The Inquiry Committee’s conclusions were set out in the Inquiry Report. I would first note that the Inquiry Committee seems to me to have given detailed consideration to the matters, and included within the Inquiry Report a fair summary of the positions adopted by the parties to the inquiry, see, for example, 2.4.19. Materially, the Inquiry Committee found the following discrepancies in the Applicant’s answers:
15.The Applicant was found not guilty of Charges 1(a), 1(b), 2 and 3:
16.The Applicant was found guilty of Charge 1(c) only. In making that finding, the Inquiry Committee stated:
17.On 27 December 2024, the Secretariat on Civil Service Discipline (“SCSD”) invited the Applicant to make representations as to whether the disciplinary authority should accept the findings of the Inquiry Committee as well as in mitigation of punishment. 18.On 6 January 2025, the Applicant submitted her representations to the SCSD (“Representations”). Amongst other things, the Applicant stated that:
19.By letter dated 1 April 2025, the SCSD informed the Applicant that (emphasis in original):
20.On 9 April 2025, the Applicant submitted her further and final representations to the SCSD. 21.By letter dated 7 May 2025, the SCS informed the Applicant that:
C. Relevant Statutory Framework 22.The challenge in this case does not turn on the legal framework and internal rules of the Civil Service. There is no dispute in that regard. Nevertheless, it may be contextually helpful briefly to summarise those rules. 23.Section 10 of the PS(A)O provides for the initiation of an inquiry for misconduct warranting dismissal or compulsory retirement as follows:
24.Section 16 states that an officer who is dismissed forfeits all claims to retirement benefits or other like benefits and to any other benefits or advantages of an officer. 25.The Public Service (Disciplinary) Regulation governs the conduct of disciplinary proceedings and procedures leading up to the removal of officers in the Civil Service. 26.The Civil Service Code provides for the constitutional order of the HKSAR, the constitutional roles and responsibilities of civil servants as members of the executive authorities, as well as the core values and standards of conduct which civil servants should uphold. Of note are the following paragraphs:
D. Grounds of Review 27.The Applicant put forward three intended grounds of review, being:
28.Ground 1 and Ground 2 focus on the SCS’s finding of guilt, whereas Ground 3 focuses on the punishment of dismissal. 29.As a preliminary observation, the Applicant’s case largely revolves around whether the SCS was justified in disbelieving the Applicant’s claims of “faulty memory” as reasons for her incorrect, inconsistent or contradictory evidence in the Interviews. 30.Mr Wong submitted that the three grounds are intertwined, i.e. the lack of reasons under Ground 1 would reinforce the unreasonableness of the finding of guilt for Ground 2, and the oppressiveness of the Dismissal Decision under Ground 3 means the Court should anxiously scrutinise the adequacy of reasons under Ground 1 and reasonableness of the finding of guilt under Ground 2. 31.I accept that there is some degree of overlap between the various intended grounds of review advanced. Therefore, though I will consider each ground individually, I have taken into account the points relevant to the other grounds, in something of an overall iterative process. 32.Mr Wong also invited me to consider seven contextual factors before going to the individual grounds of review. I can usefully set out those factors here, though I shall keep them in mind and (as seems to me to be appropriate) address them later. They are that:
E. Ground 1: Relevant Considerations and Adequate Reasons 33.The Applicant asserts that the SCS, in arriving at the Dismissal Decision, failed to take into account relevant considerations or alternatively failed to give adequate reasons. 34.In her Representations dated 6 January 2025, the Applicant gave the following explanation:
35.Hence, the Applicant perhaps put forward four explanations for her alleged faded memory, namely (1) postpartum memory loss, (2) stress from caring for her newborn, (3) sleep deprivation, and (4) emotional distress from her dog’s death. 36.Mr Wong submitted that none of the above explanations were mentioned, let alone addressed, in the letter containing the Dismissal Decision. I will address that submission. But, first, it can be noted that the Inquiry Committee at least accepted the documentary evidence underpinning those explanations. The Inquiry Committee accepted the Applicant’s evidence of a printout of WhatsApp messages from an animal funeral service provider, and a copy of the birth certificate of her daughter. E.1 Failure to Take Into Account Relevant Considerations 37.It is the Applicant’s case that the findings of the SCS are inconsistent with the explanations for the Applicant’s faded memory, in that the SCS either failed to take into account the explanations for faded memory or alternatively, if she had taken them into consideration, failed to give adequate reasons for rejecting those explanations in the Dismissal Decision. 38.As regards the Applicant’s memory, the relevant section of the SCS’s email to the SCSD dated 5 May 2025 is as follows:
39.Mr Wong said the SCS thereby at least ignored “postpartum memory loss” and “sleep deprivation” in arriving at the Dismissal Decision. In any event, he said, the email did not explain why the SCS rejected the explanations, let alone those not mentioned. 40.With respect, I disagree. First, In light of that contextual background, the SCS’s statement on “the effects of the grief brought about by the passing away of a beloved pet and the concern for a baby daughter” sensibly would include “postpartum memory loss” and “sleep deprivation”, both of which are probable symptoms of the latter “concern”. 41.Secondly, clearly, the reasons proffered by the Applicant, and referenced in these proceedings by Mr Wong, had indeed been considered by Inquiry Committee (in the Inquiry Report accepted by the SCS). For example, the issue of faulty/inaccurate memory was specifically addressed in the Inquiry Report at 6.2.2 as follows:
42.Other references are to be found in the Inquiry Report at, for example, 6.2.5 and 6.4.2 – the latter specifically in the context of the finding on Charge 1(c): see above. 43.Further, in making the finding on Charge 1(c), the Inquiry Committee specifically asked itself at 6.4.3 the question whether the Applicant lied about her travel route or whether it was a case of faulty memory. 44.Nor is the SCS’s statement that “31 August 2019 has been, hitherto, a day that many Hong Kong people cannot forget” an irrelevant consideration as Mr Wong claimed. These were precisely the factors taken into account by the SCS, and it was her finding that the Applicant’s alleged memory loss did not hold weight, particularly against the “unforgettable” nature of her arrest on that specific day. 45.As Mr Lam submitted, the fact that the SCS’s conclusion was unfavourable to the Applicant does not of itself indicate that the relevant issues were ignored. With that in mind, I do not think it was necessary for the SCS to name each and every reason or sub-reason for memory loss alleged by the Applicant, where the overall finding was that the Applicant was dishonest, particularly where the consideration of such matters was implicit in the SCS’s conclusion. 46.At this point, I can also address the sixth contextual factor above, i.e. the timing and nature of the Interviews. I note that there were various breaks in the interview, including lunch breaks as well as a break for the Applicant to pump milk. However, at the beginning of each interview, the Applicant was explicitly reminded that the information provided by her “must be correct and the entirety of the facts”, and was asked whether she was “feeling unwell” or if there were “any other circumstances which render [her] unable to conduct the interview”. At the end of each interview, the Applicant was given the opportunity to clarify whether any amendments, corrections or additions were required – to which the Applicant answered in the negative – as well as being given the opportunity to read the record of interview. 47.Although I accept this may have been something the Applicant subjectively thought, there is also no evidence that she was pressured to provide answers or details even though she could not remember. Rather, it seems that the Applicant at multiple points during the Interviews voluntarily provided details and answers. 48.For example, the Applicant could provide minute details as to her activity on that day, as well as immediately prior to her arrest. She could recall that (1) the train took longer to arrive at Yau Ma Tei MTR Station, (2) there were broadcasts requesting passengers to leave the train compartments, saying someone set off fire with smoke, someone “hitting the glass of the control room”, (3) anti-riot police “running up from behind to catch people” and using pepper spray, and (4) “the first escalator was running and the second escalator should have stopped”. The Applicant was also able to recall the reason she brought a black shirt on the day, because her boyfriend asked her to bring a spare shirt to change into after he played football. 49.However, there were discrepancies when it came to the Applicant’s answers regarding her travel itinerary from Central MTR Station to, and subsequent arrest at, Prince Edward MTR Station. The Applicant was shown a copy of a map with a layout of Prince Edward MTR Station. The upper platform consists of Platform 1 (Tsuen Wan Line to Tsuen Wan) and Platform 2 (Kwun Tong Line to Whampoa). The lower platform consists of Platform 3 (Kwun Tong Line to Tiu Keng Leng) and Platform 4 (Tsuen Wan Line to Central). When asked which platform she was on at the time, the Applicant said she was on the upper platform, which would have been true if she were travelling from Central to Prince Edward. The Applicant later amended her answer to say she was at the lower platform when she was arrested. The Applicant also clarified that she “could not remember at that time the reason leading to the difference in the direction of [my] train”, and “for now cannot recall [my] journey at that time”. 50.In any event, on the materials, I do not accept that the Applicant was under an illusion that she had to answer clearly to every single question, and indeed there were occasions during the Interviews when (without any apparent problem) the Applicant could and did say she did not remember. 51.I reject the contention that taking into account all relevant factors could only have led to a conclusion that the intense and stressful nature of the interview caused her “mistaken” answers. 52.In conclusion, I reject the submission that there was a failure on the part of the SCS to take into account relevant considerations with regard to the Applicant’s explanations for her alleged memory loss. E.2 Failure to Give Adequate Reasons 53.In the alternative, Mr Wong submitted that if the SCS had in fact taken the explanations into consideration, the duty to give reasons and fairness in the circumstances required her at least to set out in the Dismissal Decision why she rejected those explanations, which (Mr Wong submitted) she failed to do. 54.The relevant principles in relation to the giving of reasons for administrative decisions are trite. Nevertheless, I can restate them as follows:
55.Part of the rationale is the Court should not interfere with executive decisions for immaterial irregularities, and that applies whether no reasons or merely inadequate reasons are given: see, for example, PVQ v Permanent SCS for Security [2021] HKCA 444 at §28. 56.I can set out again the relevant section of the letter containing the Dismissal Decision which is as follows:
57.Looking at that objectively and fairly, it is at least clear that a reason given for the Dismissal Decision was the finding of dishonesty. The reasons given do not require great elaboration and may be brief, so long as they have dealt with the substantial issues raised. The SCS also addressed, albeit briefly, the Applicant’s “faulty memory” and gave reasons for disbelieving her claim. Reasons were also given for punishing the Applicant by dismissal rather than by way of a more lenient punishment. 58.Moreover, the Report of the Inquiry Committee was attached to the letter containing the Dismissal Decision. Therefore, the reasoning of the Inquiry Committee in reaching a finding of guilt for Charge 1(c), which appears to have been adopted in full by the SCS, would have been available and known to the Applicant. 59.I reject the submission that there was a failure to provide an adequately reasoned decision. 60.I therefore do not need to engage with the debate as to whether an applicant bears the burden of showing that he or she has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision, or whether prejudice is only a relevant factor when considering the exercise of the Court’s discretion as regards to relief, and does not go to breach of duty. However, on the facts, I see no substantial prejudice to the Applicant in the way in which she was informed of the Dismissal Decision. E.3 Conclusion on Ground 1 61.On the materials, it was simply the case that the Inquiry Committee and the SCS disbelieved the Applicant’s claims of faded memory and/or memory loss. It is evident the SCS thought the allegations were merely retrospective justifications for her misleading and/or dishonest statements as to her travel itinerary. Those reasons were also set out clearly and unequivocally in the letter containing the Dismissal Decision. 62.Ground 1 is not reasonably arguable with any realistic prospect of success. Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 1 on substantive hearing. F. Ground 2: Irrationality of Disbelieving Applicant 63.It is settled, and common ground, that the threshold for establishing Wednesbury unreasonableness is high. In essence, it must be proven that the decision made was one that is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Hence, in the context of this judicial review application, the Applicant faces the hurdle of showing that the SCS’s disbelief of the Applicant was such that no reasonable decision-maker could have reached the same conclusion. 64.Mr Wong raised 5 specific points as to why the SCS’s disbelief of the Applicant and by extension the Dismissal Decision was irrational:
65.As to the first point, it was clearly not the finding of the Inquiry Committee and the SCS that the Applicant was dishonest “simply because she provided incorrect information”. Rather, it was their conclusion – see above – that, having failed to give a reasonable explanation for her activity and travel itinerary on the material day, the Applicant had provided untrue and misleading information to the department. 66.As to the second and third points, there may be some force to the argument that the Applicant did not receive special training on memory, nor did her work require good memory. However, it is not unreasonable to accept that an arrest and the events preceding that arrest would be quite unforgettable. Similarly, there is at least significant room for doubt that a member of a disciplined service can remember being arrested by a member of another disciplined service, and yet not remember the immediate circumstances that occurred before or led to the arrest. 67.I reject Mr Wong’s submission that a person might recall the moment he or she is arrested because that is unforgettable, but the details prior to interception are irrelevant. The arrest did not occur in a vacuum, and it is not unreasonable to think that the events immediately preceding the arrest, which may have had an effect on or led to the arrest itself, would also be in mind and remembered. Indeed, after arrest, the Applicant was obviously specifically asked about those matters, though she chose to remain silent. 68.The Applicant’s apparent ability or otherwise to recall in some detail her activity prior to the arrest and the accuracy of that recollection was perfectly reasonably a factor in the SCS’s consideration, which ultimately went against the Applicant’s claim of “faulty memory”. 69.As to the Inquiry Committee’s findings on Charge 1(a), where the view was expressed that a person cannot reasonably be expected to recall accurately where he went and what transport he took on a certain day 18 months beforehand, it should be borne in mind that comment was specifically in relation to her travel itinerary to Causeway Bay earlier on the day. By way of contrast, the Applicant was arrested at Prince Edward MTR Station immediately or shortly after disembarking the train, yet gave the wrong answer as to which platform she was on when she was arrested, and only revised her answer upon watching a YouTube video of her arrest. 70.On the fourth point, Mr Wong’s submission was that there was a flaw in logic for the Inquiry Committee to find the Applicant was not guilty of Charge 1(a), but guilty of Charge 1(c). Mr Wong submitted there was no evidence to contradict and no cogent reason to disbelieve the Applicant’s explanations for her faded memory when it was accepted earlier. However, I think I have already addressed the thrust of that point above. On the way the matter was explained in the Inquiry Report, as was apparently accepted in full by the SCS, there was no flaw in logic. 71.Rather, as Mr Lam submitted, the Inquiry Committee properly looked at the charges, separately on their specific facts. As opposed to the stance explained towards Charge 1(a), the Inquiry Committee explained why it had reason to believe the Applicant was being deliberately misleading and/or dishonest in relation to Charge 1(c). 72.In any event, it is undisputed that the Applicant travelled from Central MTR Station to Prince Edward MTR Station, and that the Applicant was arrested at the lower platform of Prince Edward MTR Station. The issue was whether the Applicant had changed lines to reach Prince Edward MTR Station. 73.Again, I note that the Applicant was reminded of her duty to tell the whole truth and asked whether she was unwell or unable to continue the interview. The Applicant was also given opportunities to amend any answers given at the end. The Applicant was therefore plainly aware of the importance of telling the truth, yet failed to explain her “faulty memory” until her Representations following the Inquiry Committee’s finding of guilt. 74.On this ground, the question is ultimately whether the Applicant can demonstrate there was only one reasonable conclusion and that all other conclusions were Wednesbury unreasonable or irrational. I have already noted that the Inquiry Committee and the SCS did not discount the possibility of faulty memory. Rather, it was fully considered. But, the conclusion from the evidence presented and the inconsistencies in the Applicant’s own answers was that the Applicant had deliberately answered in a misleading and/or dishonest way. The conclusion reached by the Inquiry Committee and the SCS that the Applicant had provided misleading answers and was thus dishonest is not arguably a conclusion which was irrational or unreasonable in the public law sense. 75.With respect, some of the points put forward by Mr Wong also seem to me to be an indirect challenge to the merits, albeit framed as procedural. Whilst judicial review is to consider the integrity of the decision-making process, the merits of the actual decision were for the SCS to decide. 76.Ground 2 is not reasonably arguable with any realistic prospect of success. Alternatively, even if there is a proper basis for the grant of leave, I would refuse Ground 2 on substantive hearing. G. Ground 3: Oppression of Penalty Imposed 77.It is of course trite that the punishment has to be proportionate to the charge. 78.The SCSD thought dismissal was “the most appropriate punishment for a misconduct of this nature and severity, and a lower level of punishment (such as compulsory retirement) is inadequate to reflect the severity of your established misconduct”. The SCS agreed, in the terms I have set out above. 79.However, Mr Wong submitted that the penalty imposed was so oppressive as to be irrational. 80.The general approach regarding irrationality challenges going to the severity of punishment was laid down by the Court of Appeal in Tam Yuk Fun Toffee v SCS for the Civil Service [2026] HKCA 389 at §§40-43, and can be summarised as follows:
81.Ultimately, the proper question is whether dismissal falls within the reasonable range of sanctions in the circumstances of the present case, and the assessment and weight to be attached to the factors relevant to the exercise at hand is a matter for the SCS: see Tam Yuk Fun Toffee at §62. 82.Mr Wong submitted that, given the importance of the interests affected by the Dismissal Decision and the gravity of its potential consequences, a heightened standard of review should apply. Mr Wong cited R(KP) v SCS of State for Foreign, Commonwealth and Development Affairs and SCS of State for the Home Department [2025] EWHC 370 (Admin) in support. However, with respect, I do not think this really assists the Applicant’s case. R(KP) involved a challenge to a refusal to grant leave to allow the claimant to enter the UK on the basis of his criminal convictions. What justified the application of the higher standard of review was the fact that the challenged decision affected the claimant’s vital interests and had potentially grave consequences for him: see §79. Although there need not be a “right” impacted by the challenged decision, I do not think the consequences arising from dismissal come very close to the affected “interests” envisioned by the court in R(KP) so as to justify any higher standard of review. I am afraid that Mr Wong’s submission that the Applicant’s current financial difficulties are a result of the Dismissal Decision – true though that almost certainly is – does not add any significant weight in this regard. 83.Mr Lam sought to emphasize that the charge here was one of dishonesty – where the Applicant, in full knowledge of the obligation to provide truthful information, was dishonest or gave misleading information in the Interviews. As such, he submitted, Ground 3 should fall away once the severity of the Applicant’s actions are made clear. 84.For his part, Mr Wong submitted that the Dismissal Decision is indeed oppressive, and hence irrational, taking into account the following circumstances:
85.In deciding that the Applicant should be punished by dismissal, the gravity of the misconduct was considered in detail. Amongst other things, it was found that:
86.ImmD concluded that, taking into account all circumstances surrounding the alleged misconduct and balancing that with the Applicant’s disciplinary and service records, proposed mitigating factors and precedent cases, the Applicant was to be punished by dismissal. Similarly, the SCSD found that compulsory retirement was not adequate enough to reflect the severity of the established misconduct, and supported the recommendation of dismissal. 87.Considerably wide discretion is given to the Chief Executive – or the SCS as delegated – in determining the punishment, such that he may inflict such punishment “as may seem to him to be just”. This is, as Mr Lam submitted, a decision that the Chief Executive may make with reference to his own considerations of seriousness rather than any objective standard. To an extent I accept that, but not so far as to think the Court could never interfere. However, the likely rare circumstances when Court intervention might be justified have been delineated by the Court of Appeal as described above. 88.Viewing the evidence holistically, but acknowledging the gravity of the consequences of the Dismissal Decision, I am inclined to think that Ground 3 is reasonably arguable as would justify the grant of leave to apply for judicial review. However, even if so, and in light of the Court of Appeal’s firm reminders – being (1) as to the need for judicial restraint in circumstances such as in this case, (2) that reputation of the profession is far more important than the fortunes of any individual member, so that (3) even when a severe penalty might heavily impact an applicant, which might attract some sympathy, nevertheless “duty to the public” is the test to be applied – I do not think the Applicant’s arguments of oppressiveness/irrationality satisfy the high standard required on substantive hearing to overturn the penalty imposed by Dismissal Decision. 89.Therefore, Ground 3 also fails. H. Result 90.As all of the grounds of review fail, at least on substantive review, the Applicant’s application for judicial review is dismissed. 91.As to costs, I presently see no reason why they should not follow the event, and I order the Applicant to pay the SCS’s costs, to be taxed if not agreed. However, I will make this order first on a nisi basis, which will become absolute after 14 days unless an application is made within that period to vary the nisi order. Any variation application will be dealt with on paper.
Mr Anson Wong Yu Tat, instructed by Daly & Associates for the applicant Mr Justin Lam, instructed by, and Mr Alvin Hor, Senior Government Counsel of, the Department of Justice for the putative respondent | |||||||||||||||||||||||