LI HAO TIAN v. THE SECRETARY FOR THE CIVIL SERVICE

CACV 480/2024, [2026] HKCA 16

On Appeal From [2024] HKCFI 2580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 480 OF 2024

(ON APPEAL FROM HCAL NO 585 OF 2024)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A.  INTRODUCTION

1.  The applicant was employed by the Civil Aviation Department (“CAD”)  as an Electronic Engineer (“EE”).  On 22 January 2024, the Secretary for Civil Service (“SCS”)  directed that the applicant be retired from the civil service with effect from 23 January 2024 in the public interest under section 12 of the Public Service (Administrative)  Order (“the PSAO”)  due to persistent sub-standard performance (“the Retirement Decision”). By a Form 86 dated 11 April 2024, the applicant sought leave to apply for judicial review against the Retirement Decision.

2.  After a rolled-up hearing of the application[1], Coleman J (“the Judge”)  by an order dated 4 November 2024 (“the Order”)  dismissed the applicant’s application for leave to apply for judicial review.  The Judge explained his reasons for the Order in his written judgment of the same date (“the Reasoned Judgment”)[2].

3.  By a Notice of Appeal filed on 13 November 2024 (“NOA”), the applicant appealed against the Order.  At the end of the hearing of the appeal, we reserved our judgment to be handed down.

4.  This is our judgment.

B.  BACKGROUND

5.  The background facts leading to the Retirement Decision and the application for leave to apply for judicial review have been set out in detail by the Judge at [8] - [23] of the Reasoned Judgment.  We gratefully adopt them herein and would only highlight the following which are pertinent to this appeal.

6.  The applicant first joined the civil service as an Assistant Electronics Engineer in the Air Traffic Engineering Services Division (“AESD”)  of the CAD on 1 March 2013.  He was promoted to EE on 23 September 2016 and remained in this position until 17 May 2020.  His overall performance there as EE was generally rated at “3 – effective performance which fully meets requirements, and occasionally exceeds such requirements”, before he was deployed to a temporary post as described below[3].

7.  In April 2017, the applicant lodged a complaint against a Mr Richard Wu (“Mr Wu”)  (the then Assistant Director-General of Civil Aviation (Air Traffic Engineering Services)  (“ADG(AES)”)  on issues related to Mr Wu’s alleged non-compliance of Government procurement rules, Stores and Procurement Regulations (“SPR”).  The applicant provided supplementary information for his complaint between May 2017 and September 2019.  The CAD after investigation however concluded that the procurement exercises involved were found to be in compliance with the SPR.

8.  At the same time, between November 2018 and March 2019, the applicant had also made allegations that Mr Hui Man Ho (“Mr Hui”), the then Chief Electronic Engineer (Technical Support), was involved in receiving “advantage” from people (who were eventually recruited as contract staff)  in an Assistant Electronic Engineer (“AEE”)  recruitment exercise.  After investigation, the CAD replied to the applicant in March 2019 and March 2020 respectively that the AEE recruitment exercise was conducted in a fair, transparent and consistent manner with appropriate safeguards (including the composition of the recruitment board, declaration of interest requirement and vetting of recommendations by the Public Service Commission (“PSC”)), and there was no evidence of unfairness found in the process.

9.  On 9 April 2020, Mr Wu assumed the more senior position of Deputy Director – General Civil Aviation (1), and Mr Hui assumed the promoted position of ADG(AES).

10.  On 18 May 2020, the applicant was temporarily deployed to the Air Traffic Management Division (“ATMD”)  to take up the post of Electronics Engineer (Air Traffic Management)  tentatively for a year.  During this time, his responsibilities were to assist in carrying out a feasibility study on Controller Pilot Data Link Communication (“CPDLC”)  and a comprehensive review of the Very High Frequency (“VHF”)  assignment, which was a temporary project.  Mr Wu (with other senior officers)  was involved in the decision to create the temporary post for the purpose of the feasibility study, and Mr Hui (also with other senior officers)  was involved in the decision to deploy the applicant to that post.  The applicant’s posting was subsequently extended three times until the Retirement Decision in the circumstances summarized below.

11.  It was the SCS’s case that, subsequent to the cross-divisional deployment, the applicant’s performance had deteriorated consistently to a below-standard level.  For the two appraisal periods respectively from 18 May 2020 to 31 December 2020 and 1 January 2021 to 17 May 2021, the applicant’s overall performance was rated by his then Appraising Officer (“A/O”), Mr Raymond Li (“Mr Li”), to be unsatisfactory, at “5 – unsatisfactory performance with need for substantial improvement” and with most of the Core Competencies rated at “5 – does not yet perform well at the current rank” (respectively “the 1^st Appraisal” and “the 2^nd Appraisal”).

12.  Mr Li’s assessment of the applicant’s unsatisfactory performance in the 1^st and 2^nd Appraisals were respectively confirmed each time by the Countersigning Officer (“C/O”)  Ms Mona Cheung (“Ms Cheung”), and Mr Hui as the Reviewing Officer (“R/O”).  In confirming the assessments, Mr Hui as the R/O had also taken into account the applicant’s respective written Notice of Disagreements whereby the applicant had set out at length his reasons for disagreeing with the assessments by Mr Li and Ms Cheung respectively in the 1^st and 2^nd Appraisals.  Advisory letters reminding him about his below standard performance were issued to him respectively on 8 February 2021 and 17 May 2021.

13.  On 25 June 2021, the CAD notified the applicant that an action under Section 12 of the PSAO (“Section 12 Action”)  might be invoked against him if he was unable to make improvement in his performance within the observation period from 18 May 2021 to 31 December 2021.  He was invited to make representations in relation to this, which representations were received by the CAD on 2 July 2021.

14.  At the same time, for the purpose of helping the applicant, the authority had sought to implement various measures[4] and provide advices and counselling to the applicant to help him to improve his performance.  Despite this, his performance had dropped further and his overall performance were rated at “6 – poor performance which falls seriously short of requirements” and with all of his Core Competencies rated at “5 – does not yet perform well at the current rank” for the subsequent appraisal period from 18 May 2021 to 31 December 2021 (“the 3^rd Appraisal”)  by Mr Fong, his new A/O.  This assessment was again confirmed by Ms Cheung as the C/O and Mr Hui as the R/O.  In confirming the assessment, Mr Hui had taken into account the applicant’s Notice of Disagreement whereby he had set out again at length the reasons he disagreed with Mr Fong and Ms Cheung’s assessment.

15.  On 5 January 2022, the CAD further notified the applicant that advice from an independent panel (“Independent Panel”)  would be sought on whether a Section 12 Action should be taken on his case.  The Independent Panel was chaired by a Chief Air Traffic Control Officer with a member of a Chief Electronics Engineer (both directorate officers at D1 rank).  The applicant was again invited to make representations, which were received by the CAD on 13 January 2022 (over 1900 pages including enclosures).

16.  On 17 March 2022, the Independent Panel made its recommendation to the Director-General of Civil Aviation (“DGCA”)  to take a Section 12 Action against the applicant and put his case to the Civil Service Bureau (“CSB”)  for further processing.  The DGCA endorsed the recommendation.  On 29 April 2022, the CAD notified the applicant that a Section 12 Action would be invoked against him and his case would be submitted to the CSB for consideration of taking a Section 12 Action.

17.  By a letter-of-intent dated 3 October 2022, the CSB informed the applicant that consideration was given to requiring him to retire from the civil service in the public interest under section 12 of PSAO.  The applicant was invited to make representations, which the CSB received on 31 October 2022.

18.  By a memo prepared by the CSB dated 26 June 2023 (“CSB’s Memo”), PSC’s advice was sought on whether the applicant should be retired in the public interest under section 12 of the PSAO.  In the CSB’s Memo, it was stated that the applicant was observed to have major inadequacies/deficiencies in various aspects.  His A/Os noted that the reports prepared by the applicant on VHF Frequency Review and Comparative Study on CPDLC reflected the applicant’s poor performance and his inadequate professional expertise and knowledge, with missing topics and lacking in sufficient engineering or technical contents.  The appraising officer also observed that the applicant’s performance and ability in analysis was poor, and that he had not demonstrated commitment to his assigned duties or dedication to work.  He also did not follow his supervisors’ advice to improve his input and had rejected training opportunities, site visits and advice aimed to improve his core competences and performance.  In the view of the appraising officer, the applicant demonstrated poor interpersonal and communication skills, which further reflected poorly on his work attitude.

19.  After consideration of his representations dated 31 October 2022, on 15 August 2023, the CSB informed the applicant that it was not satisfied that he had provided any valid grounds warranting variation of the CSB’s recommendation of retiring him in the public interest and invited him to make further representations.  The applicant submitted further written representations respectively on 12 September 2023 and 12 January 2024.

20.  In essence, in all of the applicant’s representations, it is the applicant’s case that the statutory retirement exercise was a result of a malicious scheme (“the Malicious Scheme”)  engineered and implemented by Mr Hui and Mr Wu to oust him, because he had previously made complaints against them.  The Malicious Scheme was supported by various objective or highly suspicious facts, which included: his deployment was by itself unprecedented and irregular; Mr Hui and Mr Wu had “absolute authority” over all administrative arrangements to cause him to be deployed to the temporary position; there was unusual restriction of his gaining access to information in ATMD which significantly affected his performance; the appraisal reports regarding his performance was factually incorrect, biased and incomplete; and the appraisals were in any event unfair and irregular in that they were made by the A/O and C/O who were officers under the “control” of Mr Wu and/or Mr Hui.  He also claimed that the members of the Independent Panel lacked impartiality given that they were direct subordinates of the very R/O and the C/O who were responsible for assessing his performance.

21.  By an internal minute dated 18 January 2024, the SCS stated that upon consideration of all materials, the applicant’s performance had persistently been substandard despite the various training, advice and counselling given to him, and that no impropriety was found in the process.  The SCS thus decided that the applicant should be retired in the public interest and the applicant was notified of the Retirement Decision on 22 January 2024.

22.  On 11 April 2024, the applicant sought leave to apply for judicial review against the Retirement Decision.  As summarized by the Judge at [26] of the Reasoned Judgment, the applicant relied on the following two grounds of review:

(1)  The Retirement Decision was tainted with illegality in that the SCS had failed to take into account relevant considerations and/or fettered her discretion without considering the matters independently (“the Illegality Ground”);[5] and

(2)  The Retirement Decision was Wednesbury unreasonable, as the SCS had considered factors “behind the applicant’s back” (“the Unreasonableness Ground”).[6]

C.  THE REASONED JUDGMENT

23.  By way of the Reasoned Judgment, the Judge dismissed the applicant’s application.  The Judge found both the Illegality Ground and Unreasonableness Ground (considered together)  not reasonably arguable as the Judge concluded that in making the Retirement Decision, the SCS had already fairly taken into account all the applicant’s representations.  He also held that it was reasonably open to the SCS to reject those representations (by accepting the CSB’s response to them)  and to further conclude that the applicant had consistently performed in a sub-standard manner.

24.  In particular, the Judge relevantly held that:

(1)  The CSB had provided detailed responses to the applicant’s various representations, which were all placed before the SCS.  Independent advice was also sought from the PSC for the SCS’s consideration: [40] - [41];

(2)  It was perfectly open to the SCS to consider and accept the CSB’s said responses, and to find, on the available materials, that grounds for retiring the applicant owing to his persistent sub-standard performance were established.  The Retirement Decision was therefore made with all relevant considerations having been taken into account.  There was no fettering of the SCS’s discretion in arriving at the Retirement Decision: [44] - [45];

(3)  In the absence of any public law grounds, it was not open to the applicant in a judicial review to simply re-run all arguments which were already considered but not accepted in the process in the Section 12 Action: [42]; and

(4)  In the premises, the SCS had considered all the relevant factors, and the Retirement Decision was made within her discretionary limits and was not irrational or illegal: [47] - [50].

D.  THIS APPEAL

D1.  Grounds of Appeal

25.  The applicant has filed a 35-page NOA and lodged his skeleton submissions in support of the appeal.  The submissions raised in them are lengthy and scattered, but they in gist boil down to essentially two grounds of appeal:

(1)  In concluding that the SCS had properly considered the applicant’s various representations and reasonably rejected them in rendering the Retirement Decision, the Judge erred in failing to look at “the broader picture” that there was a clear motive on the part of Mr Wu and Mr  Hui to revenge against the applicant in setting up and framing the Section 12 Action.  Had the Judge properly done so, he ought to have held that (a)   the SCS had failed to properly consider the applicant’s relevant representations that there was the Malicious Scheme and/or (b)  the Retirement Decision was Wednesbury unreasonable in light of the existence of the Malicious Scheme (“Ground 1”); and

(2)  The Judge erred in dismissing the applicant’s application on the basis that the applicant failed to demonstrate public law ground of challenge alone.  As he had also claimed damages in the intended judicial review based on a case of misfeasance in public office, the Judge ought to have “transferred” the case to “a private law matter” and continue to have it dealt with in the High Court (“Ground 2”).

D2.  Ground 1

26.  Under this ground, the applicant’s principal submissions made in support are these[7]:

(1)  There is more than sufficient evidence and materials which had been presented by the applicant to the SCS that supported the Malicious Scheme, which in turn had rendered his appraisal unfair and irregular as the unsatisfactory performance results were all along framed by Mr Wu and Mr Hui.

(2)  However, in all the CSB’s responses, which were relied upon by the SCS in making the Retirement Decision, the CSB (and thus the SCS)  had not provided any or any adequate answers to address those evidence and materials as to why they did not support the existence of the Malicious Scheme.

(3)  In the premises, the Retirement Decision is:

(a)  tainted with material procedural irregularity as the decision makers had failed to take into account these (highly)  relevant evidence and materials; and/or

(b)  Wednesbury unreasonable if the SCS (through the CSB)  had regarded those evidence and materials as irrelevant.

(4)  The Judge, in dismissing the applicant’s application by simply relying on the CSB’s said responses in holding that the SCS had properly taken into account the applicant’s representations, had also erred in failing to address those relevant evidence and materials in the Reasoned Judgment in its proper and broader context.

27.  At the outset, it is trite that the court’s role in judicial review is supervisory in nature and will not intervene by way of judicial review unless the impugned decision is tainted by public law errors: Re Kartini [2019] HKCA 1022 at [13].  It is not for the court to usurp the fact-finding power vested in the decision maker or to adjudicate substantively on merits of the impugned decision.  It is also well established that judicial review is not meant for the purpose of micro-managing the activities of administrative decision-makers: Law Fei Shing v the Disciplinary Committee of the Hong Kong Institute of Certified Public Accountants & Another [2019] 4 HKLRD 225 at [38].

28.  With those principles in mind, it is clear that the applicant’s submissions are without merits.

29.  First, it is pertinent to note that the applicant’s submissions are largely a repeat of the same arguments made before the Judge, which had been considered and rejected by the Judge.  It is trite that an appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge: Progetto Jewellery Company Ltd v Lau Chiu Ying & Another [2022] 2 HKLRD 845 at [16].

30.  In this respect, the applicant’s primary contentions in this appeal is that the Judge (like the SCS)  had in the Reasoned Judgment failed to properly consider the indisputable materials or evidence in support of there being a Malicious Scheme in the important proper context of Mr Wu and Mr Hui’s clear malicious intent.

31.  Those indisputable materials or evidence are essentially these:[8]

(1)  First, there is a demonstrable strong “motive” in Mr Wu and Mr Hui to make use of their power to frame the applicant for sub-standard performance and to make use of the Section 12 Action to oust him, as he had made complaints against them before about their abuse of power. (“the Clear Motive Point”).

(2)  Second, there are clear facts which showed that the creation of the subject temporary post was highly unusual in nature:

(a)  The decision to create the temporary post and deploy the applicant to that post was made soon after Mr Wu returned to become the head of both AESD and ATMD after the applicant’s complaints had been disposed of.  This cannot be a mere coincidence.

(b)  The creation of the post itself is unusual as it was a creation of a post in another division (ATMD)  and the deployment the applicant (who is an engineer)  to an essentially non-technical position on a temporary basis.

(c)  The temporary deployment was extended three times, but the applicant was not deployed back to the permanent establishment despite the fact that there were other more suitable positions for him available at the AESD (where his previous performance was consistently assessed to be satisfactory)  at the material times.

(d)  The temporary position was “sharply discontinued” after the Retirement Decision.

(“the Unusual Creation of the Temporary Post Point”).

(3)  The applicant was unusually restricted to collect all information for his assigned work in ATMD through a single person, a Mr Raymond Chan[9], who had only provided very limited information to the applicant on a single occasion and failed to respond to his other requests for further information. This had rendered him to be unable to perform his task effectively (“the Unusual Information Restriction Point”).

(4)  The appraisal arrangements were clearly irregular, unfair and prejudiced:

(a)  Mr Hui (despite the fact that the applicant had made complaints of him before)  was assigned as the R/O for all the three appraisals; and

(b)  Mr Li (the A/O for the 1^st and 2^nd Appraisals)  was a retired staff recruited back under Post-retirement Service Contract (“PRSC”), who would thus be prone to accede to Mr Wu and Mr Hui’s wish as they had (ab)used their power to recruit him back after retirement;

(c)  Ms Cheung as his C/O was of the grade of ADG(ATM), where other officers in the EE rank (like him)  have a Chief-rank officer as their C/O.

(“the Unfair Appraisal Arrangement Point”).

(5)  The Independent Panel was not impartial as its members were both direct subordinates of the applicant’s R/O and C/O.  Their declaration of no conflict of interests would not have sufficiently supported their impartiality (“the Impartial Independent Panel Point”).

32.  We disagree.

33.  It is plain that the Judge was fully conscious of the applicant’s complaint about the Malicious Scheme and that the SCS had failed to properly deal with all his allegations in support of the existence of the Malicious Scheme, but he rejected the complaints as unarguable:

(1)  The Judge first set out in details the applicant’s elaborate representations which allegedly supported the Malicious Scheme, including the allegation of the malicious intent.  See [16] of the Reasoned Judgment.

(2)  The Judge then highlighted the CSB’s responses to those allegations, in particular in relation to the essential representations concerning the Clear Motive Point, the Unusual Creation of the Temporary Post Point, the Unusual Information Restriction Point, the Unfair Appraisal Arrangement Point and the Impartial Independent Panel Point (collectively, “the Essential Points”).  See [19] of the Reasoned Judgment.

(3)  The Judge was similarly alert to the applicant’s principal complaint that the SCS had failed to or to properly consider his representations, including the Essential Points, which were said to be supported by “unchallenged evidence”.  See [26], [30], [31], [33(1)], and [37] of the Reasoned Judgment.

(4)  The Judge, after having (a)  carefully considered the CBS’s responses as summarised in its table[10] and the SCS’s evidence, and (b)  accepted effectively SCS’s counsel’s submissions as to how those responses had answered the applicant’s various representations, including the Essential Points[11], concluded that the SCS had already taken into account all the relevant representations made by the applicant and addressed them[12].  The Judge further held at [44] that those responses were reasonably open to the SCS to make based on the available evidence and materials.

(5)  In this respect, the Judge had also reminded himself that judicial review is not concerned with the substantive merits of the impugned decision (as acknowledged by the applicant)[13] and that the weight to be given to particular aspects of the evidence/submissions is ordinarily a matter for the decision-maker[14]. The Judge then concluded that the applicant had failed to discharge the high burden required to challenge the Retirement Decision as being Wednesbury unreasonable or irrational based on contentions about the SCS’s weighing of the evidence/materials[15].

34.  In response to the Judge’s reasons and analysis, the applicant contended as follows.

35.  The applicant first pointed out that that the CSB’s responses to his representations, in particular in relation to the Essential Points were in substance that there was nothing unusual about the creation of the temporary post, his deployment to that post and his appraisals as they were all decided or carried out in accordance with well-established relevant regulations, procedures and/or practice, and in line with previous cases[16].

36.  However, the applicant argued that, in relying on the CSB’s responses that everything was allegedly done in accordance with the procedures and practices “on the face of it” as an answer to his complaints, the Judge has failed to consider them under the “big picture” of the “clear malicious intent” of Mr Wu and Mr Hui to take revenge against him.  The applicant emphasized that the crux of his complaints and thus his representations is that Mr Wu and Mr Hui, with their superior power, had abused and manipulated the established procedures and regulations to advance their intention to frame him for substandard performance so as to invoke a Section 12 Action.  In the premises, the CSB’s responses based on procedural compliance have to be viewed critically and sceptically under the broader context of Mr Wu and Mr Hui’s clear malicious intention to go against him.  Once so considered, it is clear that the CSB’s responses could not be regarded as proper and sufficient answers to his representations.

37.  There is nothing in this.

38.  The applicant’s above contention is fundamentally premised upon his submissions that (a)  Mr Wu and Mr Hui had a clear intention to revenge against him as the applicant had made complaints against them before, and (b)  all the personnel involved in the decision to create the temporary posting and the applicant’s appraisals, would all simply play along with Mr Wu and Mr Hui given their seniority and power.

39.  Although the applicant emphasized at the hearing that he was only putting forward a case that these matters and background supported at least a suspicious case of the existence of the Malicious Scheme, we do not accept it for the following reasons.

40.  First, as rightly pointed out by Mr Cheung for the SCS, the applicant’s submissions, if correct, would mean that all of these senior civil servants involved in the process, ie, the various CAD senior officers, the A/O, the C/O, and the two members of the Independent Panel had “conspired” together to abuse and manipulate the well established procedures and regulations with a view to oust the applicant.  This is a very serious allegation which would require very cogent evidence to support.  The mere fact that the applicant had previously made some unsuccessful complaints against Mr Wu and Mr Hui in our view simply do not amount to any prima facie evidence to support such a serious allegation.

41.  Second, and in any event, simply as a matter of common sense, we also do not accept that the fact that Mr Wu and Mr Hui, being very senior civil servants, had been subject to the applicant’s earlier unsuccessful complaints supports a “suspicious” case that they had “clear malicious intention” to revenge against him, and would have gone at great length to “design” an elaborate scheme to abuse the Section 12 regime to achieve that objective.

42.  In the premises, for the reasons he has set out in the Reasoned Judgment, the Judge is plainly right in holding that the SCS had properly taken into account the applicant’s various representations and addressed them in arriving at the Retirement Decision.  Ground 1 has no merit and we reject it.

D3.  Ground 2

43.  Under this ground, the applicant contended that as he has also sought damages based on misfeasance in public office in the intended judicial review, even if he could not establish any identified public law errors in the intended judicial review, the right and just way for the Judge to do is to “transfer the case … to be claimed as a private law matter” in the High Court.[17] The applicant further submitted that it would “defy justice to disallow the claim from private law, or to require the applicant to start the case afresh, as all relevant materials were readily available in the High Court”.[18]

44.  This ground is a nonstarter.  As the applicant failed to demonstrate any public law error, there is nothing to support his intended judicial review.  On that basis alone, the Judge is plainly correct to dismiss his application for leave to apply for judicial review, and refuse any of the reliefs sought thereunder (including any claim for damages).

45.  Ground 2 also fails.

E.  DISPOSITION

46.  For the above reasons, we dismiss the appeal.

47.  We see no reason to depart from the usual rule of costs following the event.  Accordingly, we order that costs be to the SCS, to be assessed summarily.  In the SCS’s Statement of Costs dated 14 May 2025, the SCS seeks a total sum of $201,943.

48.  In light of the nature and complexity of the issues raised in this appeal together with the voluminous documents lodged, we find the costs sought by the SCS to be just and reasonable.  That said, we noted that the costs sought also included the attendance of the appeal hearing by two government counsel estimated to be for 8 hours.  Given that the hearing only lasted for 1.5 hours, we summarily assess the total costs of government counsel attending the hearing at $10,650.  We therefore order on a nisi basis that the applicant shall pay the SCS costs of this appeal, summarily assessed at $155,793.  Unless any of the parties applies by Summons to vary it, this costs order and assessment shall become absolute 14 days from today.

49.  For completeness, we note that the applicant has also sought to appeal against the costs order made against him in the court below on the basis of his financial difficulties[19]. It is well established that personal financial difficulties is not a reason to justify a departure from the usual costs should follow the event principle.  We therefore would not disturb the Judge’s plainly correct exercise of his wide discretion in ordering costs against the applicant upon dismissing his leave to apply for judicial review application in the circumstances of the present case, which was advanced solely for his personal interest.