Wong Wa Fun v. Secretary for The Civil Service
Read the full judgment text of HCAL 905/2024 on BabelCite. This High Court CFI judgment was delivered on 30 June 2026.
1. At the material time of the events giving rise to this case, the Applicant was a Court Prosecutor in the Eastern Magistracy. He faced disciplinary action and was ultimately dismissed.
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HCAL 905/2024 [2026] HKCFI 2661 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 905 OF 2024 ________________________
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____________________ J U D G M E N T ____________________ A. Introduction 1.At the material time of the events giving rise to this case, the Applicant was a Court Prosecutor in the Eastern Magistracy. He faced disciplinary action and was ultimately dismissed. 2.By his Form 86, the Applicant sought leave to apply for judicial review to challenge two decisions, namely (1) the decision dated 7 July 2023 (“Guilt Decision”) made by an Inquiry Committee in finding the Applicant guilty of two disciplinary charges, and (2) the decision dated 11 March 2024 (“Dismissal Decision”) made by the Putative Respondent Secretary for the Civil Service (“Secretary”) in accepting the Guilt Decision and directing the Applicant to be punished by dismissal under section 10 of the Public Service (Administration) Order (“PS(A)O”). 3.By way of relief, the Applicant sought an order of certiorari to bring up and quash the Guilt Decision and the Dismissal Decision. 4.I gave directions to bring the matter to a ‘rolled-up’ hearing, which was eventually heard on 23 September 2024. 5.At the hearing, the Applicant appeared in person and the Secretary was represented by Mr Anthony Chan SC and Ms Vivian Kao, Senior Government Counsel of the Department of Justice. Both the Applicant and the Secretary elected to rely wholly upon the Form 86 and written submissions respectively. At the end of the hearing, I reserved my decision. 6.This is my Judgment. B. Background 7.The Applicant joined the Government in October 1992 as a Court Prosecutor (“CP”) under the Prosecutions Division (“PD”) in the Department of Justice (“DOJ”), and was promoted to Senior Court Prosecutor II in August 2004. As stated, at the time of his dismissal the Applicant was a Court Prosecutor (“CP”) in the Eastern Magistracy. 8.On 1 August 2019, the Secretary issued an open letter to all civil servants titled “Cherishing the Core Values of the Civil Service”. The letter instructed civil servants that:
9.On 2 September 2019, 4 June 2020 and 24 December 2020 respectively, the Applicant issued three emails, which were later the subject of the Disciplinary Inquiry he faced:
10.On 11 September 2019, the PD invited the Applicant to give explanations as to whether there was any objective or statutory basis for him to express the views in the First Email. On 12 September 2019, the Applicant replied “no comment”. 11.From September to October 2019, the DOJ received emails from CP grade officers and members of the public expressing objection and/or concerns about the allegations made by the Applicant in the First Email. The DOJ also received an email enquiry from a British law firm whose employees had been given a blind copy of the email. 12.On 27 August 2020, the Applicant was once again invited to provide information and explanations in relation to the First Email and Second Email, in particular whether he copied the First Email to staff members of a British law firm. On 25 September 2020, the Applicant stated that he “did not copy the email to any members of the British law firm or any outsiders”. 13.On 7 October 2020, the DOJ issued another letter to the Applicant quoting parts of the Civil Service Code and Prosecution Code and invited him to provide explanations for his alleged misconduct, on or before 21 October 2020. On 29 October 2020, the Applicant replied that “the allegations against me cannot be substantiated in court. If there is any adverse finding made against me in the disciplinary proceedings (if any), I shall apply for judicial review. I am prepared to take the case to Court of Final Appeal one day”. The Applicant also demanded full disclosure of all materials relating to the decision and implementation of the arrests made by the Police as alluded to in the First Email. 14.From 11 December 2020 to 18 December 2020, the Applicant sent six emails to all CIPs without the prior knowledge and authorisation of his supervisor concerning matters about the Police’s preparation of court case papers in general and some related common mistakes which were not case specific. 15.On 23 February 2021, the Applicant was invited to provide written explanations as to why the instructions given to him were not complied with. On the same day, the Applicant replied “I prefer to remain silent”. 16.On 31 December 2021, the Applicant was informed that a Disciplinary Inquiry would be held against him on three charges, one related to each of the emails. 17.The Statement of Alleged Misconduct set out the particulars of the disciplinary charges as follows:
18.Subsequently, an inquiry hearing against the Applicant under section 10 of the PS(A)O was made by an Inquiry Committee and held between 24 January 2022 and 3 April 2023. 19.The Inquiry Committee was (1) Ms Stella Wong Wai-fun as Chairperson, and (2) Mr Chong Ping-keung as second member. Mr Jonathan Kwan, a barrister in private practice, was appointed as Legal Adviser to the Inquiry Committee. The duty to present all relevant evidence to the Inquiry Committee fell on an Assisting Officer, in this case originally Ms Francesca Lam, subsequently replaced by Ms Andrea Young. Ms Jane TC Ho, another barrister in private practice, was appointed as the Legal Representative of the Assisting Officer. 20.On 7 July 2023, in its Inquiry Report, the Inquiry Committee decided the Applicant was guilty of charges (a) and (b), but acquitted him of charge (c). 21.Later, by letter dated 11 March 2024, the Applicant was notified of the Dismissal Decision, in the following material terms (bold in original):
22.Other than the Annex relating to the charges, there were no other attachments to the letter. C. Relevant Legal Provisions 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 relevant paragraphs of the Civil Service Regulations provide as follows:
27.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:
28.The Prosecution Code guides prosecutors in conducting prosecutions. Paragraph 1.3 of the Prosecution Code provides for the independence of prosecutors:
29.Paragraph 3.6 of the Prosecution Code provides that a prosecutor must not argue any proposition of fact or law which the prosecutor does not believe on reasonable grounds to carry weight and to be capable of reasonably contributing to a decision of the court. Material put to a witness (including an accused) must be considered on reasonable grounds to be accurate and reliable and its use justified in the circumstances. D. Grounds of Review 30.The Applicant put forward no less than nine intended grounds of review, being:
31.Some of the intended grounds of review overlap and/or are interconnected with one another, and as such can be dealt with together. 32.As a preliminary point, Mr Chan highlighted six material factual matters:
33.Apart from the “due process” point, the Applicant did not himself seriously dispute the above points. E. Grounds 1 and 2: “Discharge of Duty” 34.Grounds 1 and 2 at their core concern the same issue, namely that the Inquiry Committee was wrong in finding that the First Email and Second Email were sent whilst the Applicant was “on duty”. As such, they can be dealt with together. 35.The Applicant admits it is inappropriate to issue the First Email and Second Email as a SCP II, but submits they were not issued in the discharge of his duty, but in his own time. Ultimately, the question to be asked is whether the Applicant was “on duty” at the time the Emails were sent. 36.I note the preliminary point made by Mr Chan, which has force, that both Grounds 1 and 2 impermissibly seek to appeal the Inquiry Committee’s findings, in circumstances where the Court does not evaluate the evidence or make findings of fact where there is a dispute. It is trite that the Court does not substitute its own views for those of the decision-maker made in good faith. 37.The Applicant submitted that the Prosecution Code only governs the conducting and handling of prosecution by a prosecutor whilst on duty, but does not apply to the circumstances where a prosecutor acts on his own time on a matter unrelated to any particular court case he was handling or conducting. 38.He relies on the timings. The First Email was sent at 1:38pm, and the Second Email was sent at 1:17 pm. But both Emails were sent from the Applicant’s office email account. 39.The Applicant also suggested that there is a difference between (a) “in the discharge or in the course of duty” and (b) “in relation to, or in connection with, the duty”. The Applicant referred to the findings of the Court of Final Appeal in Sin Kam Wah Lam Chuen Ip v HKSAR [2005] 8 HKCFAR 192 at §47, where it was stated:
40.I do not think this assists the Applicant’s case. In fact, it goes to the opposite, namely that misconduct outside of the scope of the Applicant’s public duties may nevertheless be a relevant consideration such that it amounts to misconduct in public office. 41.I agree with Mr Chan that the Prosecution Code does not cease to apply just because the First Email and Second Email were sent during the prescribed lunch time and/or because they were unrelated to any particular court case the Applicant was handling. The references to the international guidelines appended to the Prosecution Code, which state prosecutors shall “at all times maintain the honour and dignity of their profession”, “always conduct themselves professionally, in accordance with the law and the rules and ethics of their profession”, and “at all times exercise the highest standards of integrity and care”, seemingly imply the Prosecution Code extends beyond working hours to “all times”. 42.I also agree with Mr Chan’s submission that “misconduct” under the PS(A)O may not even necessarily be related to a civil servant’s work or his official duties. 43.I note the Applicant’s argument that the term “in the discharge of your duty” must be an element of offence to be proved for the offences of both charge (a) and (b). I also note the Applicant acknowledges that he did not, at any stage of the Disciplinary Inquiry, raise this issue as he failed to notice the term where it appeared in the long particulars of the charges. Whilst the Applicant suggests that the matter ought to have been identified by the two private barristers present, it was not, and hence (he says) the Inquiry Committee did not take the issue into consideration when it should have. But I do not think the argument takes him far. 44.In Dr Benjamin Mark Herbert v Veterinary Surgeons Board of Hong Kong [2018] 3 HKRLD 133, the Court of Appeal found at §§18-20 that an inquiry committee is not restricted to determining only whether there has been a transgression of only those matters set out expressly in the relevant rules of professional conduct or codes of practice, but may include personal behaviour which falls short of standards and reflects adversely on the profession. Although this case was in the context of professional misconduct committed by a registered veterinary surgeon, the rationale may equally be applied to other allegations of professional misconduct. As such, the mere fact that the Applicant sent the First Email and the Second Email during his prescribed lunch hour does not assist his case. 45.In Tam Yuk Fun Toffee v Secretary for the Civil Service [2024] 3 HKLRD 528 (CFI), it was my finding at §§83-95 that misconduct may not necessarily be related to a civil servant’s work or his official duties, and 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. Although Tam Yuk Fun Toffee involved a teacher making Facebook posts, I believe my findings are nevertheless applicable in the current context. Those findings were not criticised on the appeal made in that case (see below). 46.I note in particular the circumstances in which the First Email and Second Email were issued:
47.Cumulatively, those circumstances are such that it would be reasonable for the Inquiry Committee to find that the Applicant sent the two Emails in his capacity as a CP – or, as it was put, in his “official capacity, using his office email account and sending out to the whole DOJ”. 48.Both Emails can properly be thought to have affected the Applicant’s proper discharge of his official duties. The First Email placed the Applicant in an embarrassing position with his close work counterparts, the Police. Although it might be said that the Second Email is somewhat vague and open to broad interpretation, I think it was deliberately cryptic but its intention was clear. I note that the Second Email had in fact aroused concern from other staff and the media that the Applicant was inviting his colleagues to join a prohibited rally. 49.The Inquiry Committee was fully entitled to conclude that the First Email and the Second Email were sufficiently serious that they offended the core values of the Civil Service Code and the Prosecution Code. 50.Grounds 1 and 2 are not reasonably arguable with any realistic prospect of success. Alternatively, even if there were a proper basis for the grant of leave, I would refuse both Grounds 1 and 2 on substantive hearing. F. Grounds 3 and 4: Veracity of Claims 51.Similarly, Grounds 3 and 4 challenge the same issue of the “truthfulness” of the allegations made by the Applicant in the First Email, and can be dealt with together. 52.Ground 3 contends that the burden is on the Inquiry Committee to prove that the content of the First Email amounts to “unwarranted allegations”, whereas Ground 4 is premised on the Inquiry Committee’s alleged failure to take into account the “truthfulness” of the First Email. 53.At §11.7 of the Inquiry Report, the Inquiry Committee decided it was for the Applicant to explain the basis for his allegation as it was he who made the allegation in the first place. Indeed, the Inquiry Committee concluded that falsity is not an element of the charge, and the main issue was whether the Applicant had any concrete evidence to support allegations. It was not for the Assisting Officer to adduce evidence to prove what the Applicant said was not true. 54.In Law Fei Shing v The Disciplinary Committee of the Hong Kong Institute of Certified Public Accountants and another [2019] 4 HKLRD 225, Au JA held at §26 that the focus should be on circumstances known to the applicant rather than the correctness of the allegation:
55.The Applicant contends the contents of the First Email were true and therefore they are not “unwarranted allegations”. The Applicant goes further to categorise the First Email as “a piece of valuable advice to the Police not to commit unprofessional mistake [sic] in the eyes of the public”. But, this is premised on the Applicant’s allegations being true, to which the Inquiry Committee disagreed – and, as said, holding that falsity is not an element of the charge. 56.The Applicant’s allegations can be seen as unwarranted for two reasons: firstly because they are not supported by concrete evidence, and secondly because there was no reason for the Applicant to air those allegations to the SJ, DPP and all DOJ staff. The latter is to some extent a consequence of the former, in that the allegations did not warrant being sent to the SJ, DPP and DOJ staff precisely because they are not supported by concrete evidence. 57.It is clear the Inquiry Committee took into account the support or otherwise for the Applicant’s allegations in finding him guilty of charge (a). It considered all relevant factors in concluding that the First Email contained unwarranted allegations, namely (1) the Applicant’s allegations were based on views informally expressed to him at a social gathering by persons not directly involved in the arrests, (2) such circumstantial evidence was no reliable proof to support the truth of his allegations, and (3) the fact the Applicant sent the First Email to all of the SJ, the DPP and all DOJ staff was particularly unwarranted. 58.Grounds 3 and 4 are not reasonably arguable with any realistic prospect of success. Alternatively, even if there were a proper basis for the grant of leave, I would refuse both Grounds 3 and 4 on substantive hearing. G. Ground 5: Imprecision of Charge 59.The Applicant challenges the inclusion of the phrase “could have been perceived” in charge (b) on the basis that it is too uncertain and vague, and therefore unconstitutional. 60.The Applicant suggested that the Second Email could also have been perceived to mean to invite/incite people to report to police if anyone sees another person doing any unlawful act on the material day. With respect, as a matter of law it is not now open to the Applicant to debate the meaning of the Second Email with the benefit of hindsight, nor is it open to the Court to substitute its own findings in place of that of the Inquiry Committee. 61.On the other hand, Mr Chan submitted that there is no ambiguity arising from “could have been perceived” because the matter can be sensibly tested from an objective viewpoint. There is force to this argument. Ultimately, the analysis of charge (b) seeks to determine whether the Second Email can be capable of being understood as “inviting/inciting others to take part in activities prohibited under the social distancing policy”. Further, it was stated that the “reasonable man” principle should apply in determining charge (b). 62.Mr Chan contended the Inquiry Committee was plainly entitled to reach the conclusion it did on the Second Email, taking into account that the Second Email was sent on 4 June 2020, coinciding with the date of an annual vigil in Victoria Park. Mr Chan further submitted that an objective third party would have understood the Applicant was not referring to online activities (as had been suggested by the Applicant in the Disciplinary Inquiry), but rather the in-person commemoration either in Victoria Park or elsewhere. I note in particular the inclusion in the Second Email of “dated this the last June 4 before the enactment of the National Security Law”. In fairness, the Second Email had in fact been understood by some members of the public as a concealed appeal to participate in those activities. In the 7 October 2020 email to the Applicant, the DOJ interpreted the Second Email as carrying an association with the vigils and the National Security Law, felt it gave the impression of a “strong political stance”, and “could be perceived to be inviting or even inciting others to participate in prohibited activities such as a vigil at Victoria Park”. 63.The Inquiry Committee had the benefit of competing arguments as to what to make of the Second Email, and it was well able to have formed its own view through an objective lens with the benefit of that argument. Insofar as the “reasonable man” principle is applied, it would not be unreasonable for the Inquiry Committee to reach their conclusion on charge (b). 64.Ground 5 is not reasonably arguable with any realistic prospect of success. Alternatively, even if there were a proper basis for the grant of leave, I would refuse Ground 5 on substantive hearing. H. Ground 6: Standard of Proof 65.At its core, Ground 6 seeks to challenge the use of the “balance of probabilities” standard by the Inquiry Committee. 66.It is settled that the more serious the act alleged, the more inherently improbable must it be regarded, and the more compelling will be the evidence needed to prove it on a preponderance of probability: A Solicitor v Law Society of Hong Kong [2008] 2 HKLRD 576 at §116. 67.The Applicant submitted (what he described as) the more flexible standard of “preponderance of probabilities” should have been applied. With respect, this argument has no merit. In reality, both “balance of probabilities” and “preponderance of probability” simply indicate the standard that must be established, namely that it is “more likely than not” that the person committed the act of which he is accused. “Preponderance” may perhaps suggest some flexibility, but is otherwise no different from “balance of probabilities”. Indeed, the Applicant admits in the Form 86 that the two terms “theoretically and legally could have no difference”. That is correct. They are different ways of expressing the same test. 68.In determining the Disciplinary Inquiry against the Applicant, the Inquiry Committee clearly paid mind to the correct standard of proof. At §11.2 of the Inquiry Report under the subheading “Standard of Proof”, the Inquiry Committee explicitly stated the standard of proof for disciplinary proceedings to be the civil standard, i.e. the balance of probability, and addressed the principle that the more serious the allegation is, the more compelling/cogent the evidence required to prove it will be. 69.On the matter of whether the Inquiry Committee applied the requisite standard of proof in actuality, I find in the affirmative. The contextual circumstances of the Applicant’s case must be borne in mind and cannot be viewed in a vacuum. The Applicant had previously issued the First Email during a period of social and political unrest. It is undoubtedly well-recognised that June 4 used to mark the occurrence of a vigil in Victoria Park. The Second Email was also understood by some to be a request “calling on all court prosecutors in a concealed style to commemorate that night”. In light of the above, it seems reasonable for the Inquiry Committee to arrive at the conclusion that it was indeed more likely than not that the Second Email “could have easily been perceived to be inviting colleagues to take part in activities that evening prohibited under the prevailing social distancing policy at that time”. 70.Ground 6 is not reasonably arguable with any realistic prospect of success. Alternatively, even if there were a proper basis for the grant of leave, I would refuse Ground 6 on substantive hearing. I. Ground 7: Admissibility of ‘Silent Stance” 71.The Applicant argues the Inquiry Committee committed an error in law in finding that the “silent stance” of the Police after the issuing of the First Email was inadmissible to prove the truthfulness of the First Email. 72.§11.9 of the Inquiry Report is as follows (bold in original):
73.In my view, it was not the finding of the Inquiry Committee that the “silent stance” was inadmissible. There was no indication as to the admissibility of evidence in the Inquiry Committee’s findings. Further, as accepted by the Applicant in the Form 86, after such evidence was admitted the Inquiry Committee was entitled not to attach any weight to it and reject it. That is precisely what has happened in my opinion: the Inquiry Committee found it was circumstantial evidence raised by the Applicant to substantiate his claim which in any event was not accepted by the Inquiry Committee. 74.I further agree with Mr Chan that it is simply a quantum leap to suggest silence implies wholesale acceptance. Indeed, the First Email was not sent nor copied to the Police, but rather to DOJ staff only. The circumstances and context in which the First Email was sent must also be borne in mind. During such a period of social turbulence, where similar allegations were routinely directed at the Police, it would be absurd to draw inferences from the Police’s lack of response to those allegations. 75.Moreover, charge (a) does not concern the truthfulness of the Applicant’s claims in the First Email. Whether his allegations are substantiated by such “silence” was, with respect, irrelevant. 76.Ground 7 is not reasonably arguable with any realistic prospect of success. Alternatively, even if there were a proper basis for the grant of leave, I would refuse Ground 7 on substantive hearing. J. Ground 8: Fair Hearing 77.Ground 8 is premised on the challenge that the Applicant was denied a fair hearing for three reasons, being (a) there was no severance of the charges, (b) the Applicant was denied the opportunity to cross-examine a crucial witness originally listed on the witness’ list, and (c) there was no disclosure of disclosable police materials. 78.On severance of charges, the Applicant submitted that charge (a) and charge (b) are not of the same or similar character or “so connected together as to form the same transaction”, and therefore should not have been heard together. The Applicant further alleged he suffered prejudice as a result of the failure to severe the charges, namely (1) the loss of choice to elect to give evidence for one of the charges but not the other, and (2) the Inquiry Committee’s decision for one charge being influenced by prejudicial evidence in the other charge. 79.On the other hand, Mr Chan submitted the Inquiry Committee had no authority to amend the three charges, nor was there any need to sever those charges. 80.As is clear from the outset, the nature of the case against the Applicant was not that of a criminal trial, but rather an internal disciplinary inquiry. As such, the usual rules and regulations which govern such trials do not apply. The overall purpose of the Disciplinary Inquiry was to determine whether the Applicant was guilty of misconduct serious enough to warrant dismissal or compulsory retirement in accordance with section 10 of the PS(A)O. Those charges merely set out individual instances which cumulatively formed the larger pattern of misconduct of which the Applicant was accused. 81.I further note the Inquiry Committee addressed this issue specifically at §3.10 of the Inquiry Report. In particular, it was stated that the Inquiry Committee “would be mindful that it would consider each charge separately, unprejudiced by the other charges”. The Inquiry Report shows that to have been so. There is no evidence the Applicant has suffered any prejudice as a result of the charges being heard together either. This point is unsubstantiated and must fail. 82.Secondly, the Applicant complained he was unable to cross-examine a witness originally listed on the witnesses list, that witness being Ms Lily Ho (“Ms Ho”) who was an ex-Senior Court Prosecutor I and the immediate supervising officer of the Applicant in the same court at the material time. 83.Whether a fair hearing requires that there be an opportunity to cross-examine witnesses is largely dependent on the circumstances of the case in question. The reasons and purposes for requiring cross-examination and the prejudice occasioned by the want of cross-examination are important considerations in deciding whether an applicant had been deprived of a fair hearing: Tsui Ma Ching v An Investigation Committee Appointed Pursuant to Section 6 of the Public Service (Discipline) Regulation and Section 10 of the Public Service (Administration) Order 1997 and another (unreported, HCAL 20/2004, 26 January 2005) at §42. 84.After careful consideration, I am persuaded by Mr Chan’s submissions. Ms Ho was not a key witness to charge (c), nor was her evidence relevant to charges (a) and (b). The Applicant in any event has not suffered any prejudice as a result of not being afforded the opportunity to cross examine the witness as he was acquitted of charge (c). 85.Indeed, Ms Ho’s relevance to the Disciplinary Inquiry is rather limited in scope for charge (c) only, and is in fact completely irrelevant to charge (a) and (b). Of any significance at all was Ms Ho’s meeting with the Applicant on 23 December 2020, whereby she informed the Applicant to follow the recommendations by Mr Ricky Fung (OC Court) to stop sending emails directly to the police, but to route them through OC Court. On 24 December 2020, i.e. the date of the Third Email, Ms Ho also conveyed to Mr Vincent Siu (“Siu”) who was acting in her post as SCP I the instructions of Mr Aaron Lee (“Lee”) for the Applicant to route any messages to police or other working partners through his supervisor. 86.The Inquiry Committee also held that the key witnesses in respect of charge (c) were Lee and Siu. However, the Applicant elected not to cross-examine either Lee or Siu. 87.Ultimately, Ms Ho was removed as a witness because she left Hong Kong after retirement and was unwilling to come back to Hong Kong or give online testimony. The Legal Representative considered there was sufficient evidence against the Applicant even without Ms Ho. On 2 September 2022, Ms Ho was contacted once again to see if she was willing to give evidence, to which she replied she had not received a vaccination, and did not wish to come back nor did she wish to give evidence online. I further note that the Applicant on 15 November 2022 withdrew his request for Ms Ho’s presence at the Disciplinary Inquiry. The Applicant repeated his request on 30 January 2023, but the Assisting Officer had by then already submitted her evidence and called her witnesses. 88.I find there was no procedural unfairness arising out of Ms Ho’s absence from cross-examination. 89.Lastly, the Applicant’s submission that there was no disclosure of disclosable police materials does not stand. Mr Chan reiterated that the central issue in charge (a) is whether the allegations in the First Email were unwarranted, not the truthfulness of those allegations. I agree. In any event, the Applicant accepts this Ground stands or falls with Ground 4, i.e. that the Inquiry Committee failed to take into account the relevant consideration of the veracity of the Applicant’s allegations in the First Email. I repeat my findings above, and consequently find this point must also fail. 90.In Leung Fuk Wah Oil v Commissioner of Police [2002] 3 HKLRD 653, Cheung JA held that the existence of actual prejudice was a relevant factor to be considered in a fairness challenge at §§40 and 76:
91.I am not convinced there was any breach of fairness, nor am I persuaded that the Applicant has suffered any prejudice, from the points above. 92.As such, Ground 8 is not reasonably arguable with any realistic prospect of success. Even if leave were to be granted, I would dismiss Ground 8 on substantive review. K. Ground 9: Wednesbury Unreasonableness 93.Ground 9 is essentially a challenge to the Dismissal Decision on the basis of Wednesbury unreasonableness. In other words, the question 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. 94.The punishment imposed on the Applicant was indeed the most serious kind which could be imposed on a civil servant charged with disciplinary offences, being dismissal with forfeiture of all pensions accrued for roughly 30 years. 95.The general approach regarding challenges against sanctions imposed by a disciplinary authority on the ground of irrationality was laid down by the Court of Appeal in Tam Yuk Fun Toffee v Secretary for the Civil Service [2026] HKCA 389 at §§40-43 and can be readily summarised as follows:
96.Ultimately, the proper question to ask was 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 Secretary: see Tam Yuk Fun Toffee (CA) at §62. 97.The Applicant was informed of the outcome of the Disciplinary Inquiry and was provided with a copy of the Inquiry Report on 10 July 2023. The Applicant was also invited to submit representations as to whether the disciplinary authority should accept the findings of the Inquiry Committee and in mitigation of punishment. The deadline for the Applicant to submit his representations was extended to 2 August 2023 upon his request, yet he failed to provide any representations by the deadline. 98.There is significant weight to the fact that the Dismissal Decision involved a multi-tiered review. The Inquiry Committee’s findings were reviewed by the DOJ and the PSC before the Dismissal Decision was ultimately reached by the Secretary. 99.The Applicant sought to highlight two distinct features in the present case which he argued rendered such severe punishment an error in the public law sense, being (1) the evidence upon which charge (b) was founded was vague and open to interpretation, and (2) the Inquiry Committee failed to determine the veracity of the contents of the First Email. 100.With respect, it is apparent these “distinct features” are essentially reruns of previous Grounds raised by the Applicant, namely Grounds 5 and 4 respectively. My findings were that both Grounds are not reasonably arguable and/or refused upon substantive hearing. Therefore, this argument is moot. 101.The Applicant further advanced the argument that, as the Inquiry Committee “failed to determine the issue of truthfulness or falsity of the contents of the First Email”, the version of fact most favourable to the Applicant must be adopted for the purpose of imposing punishment, i.e. that the First Email was “valuable advice given to police”. But, the Inquiry Committee found that the important point was whether the Applicant had concrete evidence to support his allegation at the time of issuing the email, and not whether the Applicant’s allegations were true, i.e. what the actual motive of the police arrests were. Therefore, whether the Applicant’s allegations in the First Email were “true” is immaterial to the severity of punishment. Further, it can be said that the very act of sending an email stating his personal views, from his office account, to the SJ, DPP and other DOJ staff went against the Prosecution Code and Civil Service Code, and the necessary principles of impartiality, professionalism and political neutrality. 102.In arriving at the Dismissal Decision, the Secretary took into account the gravity of the Applicant’s misconduct as demonstrated by the following factors:
103.The Secretary had not lost sight of the possibility of an alternative, lesser punishment. But, it was the finding of the Secretary that the gravity of the Applicant’s misconduct was very serious and at the higher end of the scale, which did not justify a lighter punishment other than dismissal to reflect the gravity and to achieve the desired punitive and deterrent effect. 104.The Secretary also took into account the fact that the Applicant had a clear disciplinary record and consistently received “Outstanding” or “Highly Effective” ratings for his performance in the past five years prior to the Disciplinary Inquiry. 105.For completeness, two precedent cases were considered, but they were not considered to be comparable to the Applicant’s case. In any event, the fact that those cases imposed less severe sentences does not assist, nor does it constitute ground to trigger an irrationality exercise. Even where the sentence is not lenient by comparison with other cases, that does not in itself warrant interference by the Court, and a severe award does not make it irrational: see Wong Chun Wai Pett v Commissioner of Police [2020] 2 HKLRD 325 at §37. 106.In light of these circumstances, the Dismissal Decision cannot be said to be “so harsh and oppressive” that its imposition involved some error of law and/or unreasonableness in the public law sense so that the Court might interfere. 107.As such, Ground 9 must also be rejected. L. Result 108.Grounds 1 to 9 all fail, and the Applicant’s application for judicial review is dismissed. 109.As to costs, I see no reason why they should not follow the event, and I order the Applicant to pay the Secretary’s costs, to be taxed if not agreed.
The applicant, acting in person Mr Anthony Chan SC, instructed by, and Ms Vivian Kao, Senior Government Counsel of, the Department of Justice, for the putative respondent | |||||||||||||||||||||||
Cases cited in this judgment