Wong Wing Kit v. Fire Services Department and Another
|
HCAL 1853/2024 [2026] HKCFI 5300 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1853 OF 2024 ________________________
________________
__________________ D E C I S I O N __________________ A. Introduction 1.By his Form 86, the Applicant sought leave to apply for judicial review, identifying the Fire Services Department (“FSD”) and Kong Wan Fire Station Commander Man Fu-kong as the Putative Respondents. He also identified four fire stations as the Putative Interested Parties: Kong Wan Fire Station, Wan Chai Fire Station, Sheung Wan Fire Station, and Central Fire Station. 2.The relief sought by the Applicant was the rescission of the FSD’s decision on 28 August 2024 to terminate his probationary service effective 29 August 2024 (“Termination Decision”), a decision made in accordance with Regulation 186 (“CSR 186”) of the Civil Service Regulations (“CSR”). 3.I gave directions permitting an Initial Response, and a consequent Reply from the Applicant. The Initial Response filed on behalf of all Putative Respondents and Interested Parties was signed by Mr Wong Chin Yui and Ms Vicky Wong, both Government Counsel. Acting in person, the Applicant filed his reply in two parts (“Reply” and “Further Reply”). 4.Having considered the materials provided, I am satisfied the application can be dealt with on paper. 5.This is my Decision. B. Background 6.The relevant facts were summarised in the Initial Response, and to an extent also by the Applicant, and can be broadly set out as follows. 7.The Applicant was employed as a Fireman by the FSD on probationary terms from 25 January 2021 until his termination on 29 August 2024. 8.Generally, an officer on probationary terms undergoes a period of observation, the objective of which is to provide opportunity for the officer to demonstrate through his performance and conduct his suitability for further appointment. As employer, the FSD can take advantage of the probationary period to terminate the service of an officer if he is unlikely to prove suitable for continued service or further appointment. 9.Indeed, under the Applicant’s terms of service as set out in his Letter of Appointment dated 28 December 2020, the Government had the right to terminate his appointment on probationary terms by giving one month’s notice, or paying one month’s salary in lieu without recourse to disciplinary procedure. Further, probationers have no absolute right to further appointment. 10.From 19 February 2022, the Applicant invested money into a fraudulent investment scheme (“Scheme”) operated by a former Senior Fireman (“Lee”). In doing so, he also introduced the Scheme to his family, friends and colleagues. Some of these new investors transferred sums to Lee via the Applicant’s personal bank accounts. 11.Between March and September 2022, the Applicant assisted Lee in distributing “interest” to the various investors, through the Applicant’s personal bank accounts, in accordance with Lee’s instructions. 12.In July 2022, the Applicant was informed by Lee that Lee was being investigated by the ICAC, and that the Applicant should therefore delete all the WhatsApp messages between them stored on the Applicant’s phone. According to the Applicant, these messages included, amongst other things, details about the Scheme, and Lee’s instructions to the Applicant regarding the Applicant’s receipt of funds and distribution of interest to investors. 13.The Applicant has placed some weight on the point that he himself reported the case on 6 November 2022, on the basis that he might have been scammed. 14.In any event, the FSD, via Station Commander Man, conducted an internal investigation into the matter in mid-2023. Three written statements were taken from the Applicant on 9 August 2023, 24 August 2023, and 20 September 2023 respectively. 15.Upon the conclusion of the investigation, Station Commander Man issued an investigation report on 11 January 2024. It found that the Applicant fell below the acceptable and reasonable standard of integrity, and so his employment should be terminated by reason of “general unsuitability of personal characteristics” in accordance with CSR 186. The specific findings of the report can be summarised as follows:
16.On 15 February 2024, the Director of the FSD initiated the procedure under CSR 186 to terminate the Applicant’s probationary service by reason of his integrity, honesty and law-abiding awareness being far below the acceptable and reasonable standard required of a Fireman. A letter-of-intent was issued on 19 February 2024, and the Applicant was interdicted from work that same day. 17.Through his solicitors, the Applicant then requested disclosure of the evidence regarding the allegations on 22 February 2024, which was provided by the FSD on 13 March 2024, alongside the Investigation Report. The FSD also granted multiple time extensions to the Applicant in submitting his representations, which he eventually provided on 27 May 2024. 18.On 2 July 2024, the FSD sought advice from the Public Service Commission on the proposed termination of the Applicant, and its support was given on 22 August 2024. The termination was officially approved by the Director of the FSD on 27 August 2024, after consideration of all relevant matters in the Applicant’s case including his representations. 19.The Termination Decision was carried into effect on 29 August 2024. In accordance with the terms of his contract, the Applicant was paid one month’s salary in lieu of notice. C. Amenability 20.Before going into the merits of the application, I can address whether the Termination Decision is one that is amenable to judicial review. 21.It is trite that for a decision to be amenable to judicial review, it must have a sufficient public law dimension. Significant factors that the Court may take into account include whether the decision-maker is a public body, whether the decision-making body and decision-making process is enforced through statute or includes sufficient public law elements, and whether the nature and function of the decision is of a public nature. It may be a matter of fact and degree, and there is no hard and fast rule in the analysis: see Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215 at §57. 22.Mr Wong submitted that the Termination Decision sought to be challenged is an employment matter between the FSD and the Applicant, which falls within the private law realm. I agree. It is trite that employment by a public authority does not of itself inject any element of public law. Whilst not every employment law matter automatically falls within the private law realm, this is one that did. It was a decision in relation to the Applicant’s temperament, characteristics and performance of duties as an officer on probationary terms, and whether the Applicant had shown that he was suitable for continued service or further appointment. These were matters in relation to his employment. 23.Mr Wong also drew attention to the fact that the rights to terminate the employment relationship between the employer and employee on probationary terms under the CSR are mutual. This mutuality lends further support to the fact that the Applicant’s employment was a matter outside the realm of judicial review. 24.The Applicant made no submissions in relation to amenability, but he referenced CSR 186 as the authority underpinning his dismissal. However, as submitted by Mr Wong, the CSR governs the contractual relationship between the Government and civil servants as employer and employees: see Ho Chee Sing James v Secretary for Justice [2008] 1 HKCLRT 141 at §11. There is no practical difference between the Termination Decision and a termination decision between a private employer and employee under a contract of employment. 25.In short, the Applicant’s intended challenge arose from a dispute involving an employment contract, of the sort which falls within the domain of civil litigation. It did not involve any public interest or public policy or indeed any other element of public law. The Applicant’s cessation of probation by the Termination Decision was hence a private employment law matter, and the Applicant’s intended challenge to that decision must fail as being not amenable to judicial review. The application fails on that basis alone. D. No Merits 26.However, for the sake of completeness, I shall go on to consider the merits of the Applicant’s intended grounds of review. 27.In the Affirmation, the Applicant stated that his grounds included that the Termination Decision was: (1) in breach of natural justice, (2) unreasonable, (3) a wrongful exercise of discretion, and (4) based on erroneous or mistaken evidence. He did not, however, specifically provide particulars in relation to each of the grounds. 28.It should be noted that intended grounds of review must be more specific than just merely use of labels or headings such as “breach of natural justice” or “unreasonableness”. It is incumbent on an applicant for leave to apply for judicial review specifically to identify, explain and support each intended ground of review – as well as to verify the facts relied on in support of those grounds. As has often been said before, it is not for the Court to seek to discern public law errors made by a decision-maker. 29.I note, however, that the Applicant seemed to place the most emphasis on the complaint of breach of natural justice. In contrast, he did not provide much explanation for the other grounds. Therefore, I will address Ground 1 on its own, followed by the other grounds together. D.1 Ground 1: Breach of Natural Justice 30.In the Affirmation, the Applicant submitted that he did not receive prior warnings or discussions, nor an oral hearing in relation to his termination, and as such, he was not given any opportunity to explain: (1) his assistance provided to the police in relation to the police investigation, (2) that the deleted WhatsApp messages were backed up, and (3) the inferences drawn from the statements in relation to his role in referring the Scheme to new investors, collecting commissions and distributing interest. Moreover, in his Further Reply, the Applicant seemed to hint at bias against him and in favour of other colleagues by the FSD in conducting the investigation. 31.It is factually incorrect for the Applicant to suggest that the Termination Decision was made without prior warnings or discussions. He was provided with the letter-of-intent, and given all relevant documents identifying the FSD’s case against him. He made written representations in response, with legal assistance. 32.It is also well-established that there is no absolute right to an oral hearing. In determining whether an oral hearing should have been granted, the Court looks to the context, which may include, amongst other things, the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: see ST v Betty Kwan [2014] 4 HKLRD 277 at §26. 33.I do not think that the Applicant has sufficiently shown that he has reasonably arguably been unjustly affected by the lack of an oral hearing. That is for several reasons. 34.First, the Termination Decision was made in accordance with relevant rules and procedures, including CSR 186, which were duly followed. 35.Secondly, the Applicant was granted multiple extensions of time and the right to legal representation in relation to his written representations to the FSD. The Applicant’s request on 22 February 2024 for disclosure of the evidence in relation to the allegations was met by the FSD, where it provided a copy of the Investigation Report and other relevant internal documents, as well as granting a 28-day extension for the Applicant to submit his representations (i.e. by 25 March 2024). Three more extensions were subsequently granted, until 3 April 2024, 20 May 2024, and 27 May 2024 respectively. Therefore, the Applicant was given a generous amount of time to respond to the allegations and provide further explanations, with the assistance of his legal representatives. 36.Thirdly, upon a reading of the Applicant’s written representations, it seems to me that they are, in substance, similar to the explanations provided by the Applicant in his written materials for the present proceedings. As such, I do not see how the presence of an oral hearing would arguably have had an effect on the outcome of the Termination Decision. 37.Further, the Applicant’s suggestion of bias in his Further Reply also seems to be unsubstantiated. First, he submits that bias can be made out from the fact that two other Firemen that were also involved with the Scheme were not subject to the same investigation to which he was subject. In my view, this has no bearing on the fairness of the investigation on the Applicant. The key issue is whether or not the FSD, in coming to the Termination Decision, acted fairly towards the Applicant in the process. 38.The Applicant also submitted that in his meetings with Station Commander Man in December 2023 and January 2024, Station Commander Man shared the “pros and cons of resignation” with him, which (the Applicant said) seemingly suggested that an outcome was already determined, and that the investigation was hence biased. I disagree. According to the summary of audio recordings provided by the Applicant, he met with Station Commander Man on 7 December 2023 to discuss the consequence of termination under CSR 186. It would logically follow that a Station Commander would simply give advice to the Applicant to weigh up options, specifically if the FSD had a general sense of where the investigation might be going, given that the investigation had started months prior to this meeting. Such advice would be completely unrelated to the internal investigation itself. 39.As such, Ground 1 is not reasonably arguable with any realistic prospect of success. D.2 Grounds 2-4: Unreasonableness, Wrongful Exercise of Discretion and Erroneous or Mistaken Understanding of Evidence 40.On the ground of unreasonableness, the Applicant does not really raise any specific points which support such a separate claim. The only reference made to unreasonableness is a generic, catch-all claim that the process used by the FSD in coming to its decision was unreasonable. It seems to me that nothing in the Applicant’s submissions sufficiently exhibits unreasonableness on the part of the FSD, let alone Wednesbury unreasonableness. 41.In fact, the Termination Decision made by the FSD was well within what would be considered reasonable. The conclusion that the Applicant fell below the acceptable and reasonable standard of integrity required of a Fireman had proper reasoning and support. This included that the Applicant was highly involved with the Scheme, that the Applicant consented to the deletion of instant messaging records, and that the Applicant gave varying, inconsistent accounts to the FSD and the Police in separate statements. 42.The Applicant has attempted to argue that such finding was unreasonable and erroneous since he was not the person who deleted the messages, and that he had kept a backup copy of such messages. In approaching the question as to the Applicant’s lack of integrity, the FSD did not labour under any mistake as to the person who actually deleted the records. Further, consent to deletion reasonably explains the finding of dishonesty by the FSD. I see no reasonably arguable merit in the Applicant’s intended Ground 2. 43.Similarly, the Applicant’s ground asserting the wrongful exercise of discretion contains merely vague assertions that in coming to its decision, the FSD wrongfully exercised its discretion in doing so. The Applicant does not provide any particulars properly supporting such a ground, and his own dissatisfaction with the decision does not mean that there was any wrongful exercise of discretion. Ground 3 is not reasonably arguable. 44.The Applicant’s last ground as to the Termination Decision being based on an erroneous or mistaken understanding of the evidence is also unfounded. The Applicant’s first point on this ground is that he himself was a victim of the Scheme, and as such, the FSD wrongfully placed importance on his involvement in coming to the finding of dishonesty. In my view, it was undoubtedly clear to the FSD that the Applicant himself lost money to the Scheme and so was also a victim. However, that was not the point of the FSD’s findings. The point was that the Applicant, whilst being a victim himself, was actively involved with the running of the Scheme, to a greater degree than merely as a victim. 45.The Applicant’s second point echoed his submissions on the deletion of messages made under the Ground 2. Again, it does not capture the essence of the FSD’s findings. Therefore, Ground 4 is also not reasonably arguable. 46.Overall, the Termination Decision was plainly one reasonably open to the FSD on the materials and circumstances of the case. E. Result 47.I have already noted that by the Applicant’s Letter of Appointment the Government had the right to terminate the Applicant’s probationary appointment either by giving one month’s notice or one month’s salary in lieu of notice, even without recourse to disciplinary procedure and without any reasons being given. Further, the Letter also provided that the offer of any further appointment is at the discretion of the Government, and that there should be no presumption that further appointment would be offered. 48.Therefore, even if the Applicant felt aggrieved by the Termination Decision, an application to challenge it was essentially misconceived, as a matter of private employment law. It was also well within the FSD’s power to come to such a decision. 49.In addition, because it was a matter of private employment law, the Termination Decision was not amenable to judicial review. In any event, the Applicant failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success. 50.As a result, I dismiss the Applicant’s application for leave to apply for judicial review. However, in the exercise of my discretion, and despite Mr Wong’s understandable request for a costs order against the Applicant, I make no order as to costs.
The applicant, acting in person Mr Wong Chin Yui and Ms Vicky Wong, both Government Counsel, of the Department of Justice, for the putative respondents and the putative interested parties | ||||||||||||||||||||||||||||||||||||
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment