LAM CHI CHUNG v. SECRETARY FOR THE CIVIL SERVICE

HCAL 1081/2024

[2024] HKCFI 2679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1081 OF 2024

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D E C I S I O N

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A.  Introduction

1.  The Applicant was a civil servant from 1992 until a decision made by the Secretary for the Civil Service (“SCS”), and communicated to the Applicant by letter dated 30 August 2021 (“Decision”). The Decision directed the Applicant to retire from the civil service in the public interest under section 12 of the Public Service (Administration) Order (“PS(A)O”).

2.  The retirement was directed in light of the SCS’s view that the Applicant had failed to meet the requirement (“Requirement”) that all civil servants appointed before 1 July 2020 should duly sign and return a particular declaration (“Declaration”).

3.  By Form 86 dated 8 July 2024, the Applicant seeks leave to apply for judicial review so as to challenge the Decision.

4.  As will be obvious, the application for leave to apply for judicial review was made almost 3 years after the Decision, in circumstances where such an intended challenge should ordinarily be made as soon as possible and in any event within 3 months. It will be necessary to consider that period of delay, and its impact on the application.

5.  I gave directions for the SCS to file an Initial Response, and to bring the matter to an oral hearing of the application for leave (as requested by the Applicant). The Initial Response was filed and served on 15 August 2024. The oral leave hearing was fixed for 3 October 2024.

6.  At the hearing, the Applicant was represented by Mr Calvin Law of Counsel. The SCS was represented by Mr Aaron Lam, Assistant Law Officer (Civil Law).

7.  At the end of the hearing, I reserved my decision to be handed down later. This is my Decision.

B.  Factual Background

8.  In his submissions, Mr Law has suggested that “the factual matrix of this leave application is perhaps quite complicated”, and that it ties in with “the civil servant system in the logistics perspective”. On the other hand, he also acknowledged that the disputed issue is simple and direct.

9.  Indeed, it seems to me that the material facts of this case are actually entirely straightforward. Insofar as is necessary, they can be set out as follows.

10.  The applicant was a civil servant, employed with the Hongkong Post.

11.  It seems that, from December 2020, the Applicant started to make complaints to the SCS/CSB about unfair and unlawful treatment, and violations against the PS(A)O and other regulations. It is the Applicant’s stance that he had been subjected to unfair and unlawful treatment while working at the Hongkong Post, and that the matters remained unresolved for decades.

12.  Though the Applicant (through Mr Law) accepts that the matters which happened at the Hongkong Post are not the subject of this application for leave to apply for judicial review, Mr Law submitted that those matters “certainly lay down the foundation required by this Court to objectively assess whether the conduct of the Applicant did fulfil the Requirement and nothing shall nullify another way round in this case”.

13.  On 15 January 2021, Circular 2/2021 was issued by the Civil Service Bureau (“CSB”), requiring (i.e. the Requirement) all civil servants appointed before 1 July 2020 to duly sign and return a declaration (“Declaration”) by the stipulated deadline, to confirm that they will uphold the Basic Law of the Hong Kong Special Administrative Region (“HKSAR”) of the People’s Republic of China, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government.

14.  More detail as to the background of Circular 2/2021 can be found set out by me in Woo Tak Yan v Secretary for the Civil Service [2022] HKCFI 1465 and Wong Chau Ming v Secretary for the Civil Service [2023] HKCFI 2468, [2024] 1 HKLRD 200. It is unnecessary to rehearse that detail here.

15.  Circular 2/2021 identified (at §3) that:

(1)  the Requirement was introduced to enhance civil servants’ awareness of the expectations and responsibilities brought on them by their official positions; and

(2)  the Requirement was to give an open acknowledgement of the acceptance and a genuine manifestation of the responsibilities of and expectations on civil servants, which will further safeguard and promote the core values that should be upheld by civil servants, and ensure the effective governance of the HKSAR Government.

16.  The consequences of failing to meet the Requirement were also made plain, because Circular 2/2021 further stated (at §7):

Neglect, refusal or failure to duly sign and return the declaration by the stipulated deadline without reasonable excuse reflects an officer’s refusal to acknowledge, accept and discharge the consistent duties of civil servants, and a serious lack of commitment to add here to the core values of the civil service which underpin good governments and help the civil service gain and retain the respect and confidence of the public. As the civil servant’s commitment to adhere to the core values of the civil service is in serious doubt, the Government will, based on the facts of each case, initiate action to terminate the service of an officer who neglects, refuses or fails to duly sign and return the declaration. In accordance with the mechanisms under the [PS(A)O] all the relevant disciplined services legislation as appropriate, representations as to why the course of termination should not be taken will be invited from the officer concerned. The Government will consider the representations, if any as received, and will make a decision on the continuous employment or otherwise of the officer concerned. For cases involving grades and ranks falling within the purview of the Public Service Commission (“the Commission”), advice of the Commission will be sought before a decision is made.

17.  Annex A to Circular 2/2021 is the blank Declaration form necessary to complete for compliance with the Requirement. It is a bilingual form (Chinese and English) already bearing the necessary wording of the Declaration. The person making the simple Declaration merely needs to fill out his or her ‘Name’, ‘Hong Kong Identity Card No.’, ‘Rank’, ‘Signature’ and ‘Date’ on the printed lines next to those items.

18.  The wording of the Declaration also has an asterisk (*) immediately after the wording of the Declaration in both languages, which points to the clearest of footnotes stating:

如對聲明書內容作出更改、增加或刪減，此聲明書即告無效

In case of any variation, addition or deletion to/of the declaration, the declaration will be rendered null and void.

19.  Annex B to Circular 2/2021 is the ‘Explanatory Note on the Content of the Oath or Declaration for Civil Servants’.

20.  It is helpful to note here that – as in previous similar challenges – there is no challenge to the legality of the Requirement. The issue in this case again centres on whether the Applicant “duly signed” the Declaration made by him, and/or the question whether there was any reasonable explanation or excuse for not doing so.

21.  It is common ground that the question whether the Declaration is duly signed is a question of law and common sense: see, also, the Woo Tak Yan case at §81.

22.  On 9 February 2021, the Applicant made enquiries with the Departmental Secretary (“DS”) of Hongkong Post, on matters relating to his previous expressions of complaint or dissatisfaction made in relation to the operation of Hongkong Post. It was explained to the Applicant that the Requirement had nothing to do with those matters (as the Applicant himself later acknowledged).

23.  On 22 February 2021, being the last day for returning the Declaration so as to comply with the Requirement, the Applicant returned his signed Declaration but added the following additional words (“Additional Words”) immediately after the asterisk (*), in his own handwriting:

但質疑以上聲明是否適合香港郵政使用

English translation: but I doubt whether the above declaration is suitable to be applied to Hongkong Post

24.  Though I can return to the point later – and though I had understood that the English translation above had been agreed between the parties in accordance with my directions as to agreeing translations – Mr Law said in submission that he did not agree to the translation of the Additional Words, and offered his own alternative, being:

but doubt the above declaration is or is not suitable for Hongkong Post to use

25.  After receiving the Declaration as submitted by the Applicant, a clerical officer (Ms Kwok) of Hongkong Post was assigned to call the Applicant and inform him of the impropriety of his Declaration. She informed the Applicant that a (or another) form would be sent to him, but the Applicant said that even if it were to be sent to him he would still return the declaration form with his remarks inserted onto it. In those circumstances, no new declaration form was provided to the Applicant.

26.  Hongkong Post and the CSB considered – unsurprisingly – that the Additional Words amounted to an “addition” to the standard form for Declaration, which rendered the Applicant’s Declaration null and void. As such, the Applicant was considered to have failed to duly sign and return the Declaration in accordance with the Requirement, and the PS(A)O section 12 action was initiated against him.

27.  By letter dated 10 March 2021, the Applicant was informed that the view was taken that he had not duly completed the Declaration so as to meet the Requirement. He was invited to submit a written explanation, stating the reasons for the failure to duly sign and return the Declaration, following which the management side would consider whether the written explanation submitted is reasonable based on the Applicant’s actual circumstances.

28.  Subsequently, in total, upon the various invitations of Hongkong Post and the CSB within the section 12 process, four rounds of written representations were made by the Applicant, being:

(1)  by email dated 15 March 2021 to the Public Service Commission (“PSC”);

(2)  by letter dated 25 May 2021 to the PSC via the CSB;

(3)  by letter dated 6 July 2021 to the PSC via the CSB; and

(4)  by letter dated 12 August 2021 to the PSC via CSB, making his ‘final word’ representations.

29.  It is fair to point out that the Applicant contended that he had no disagreement with Circular 2/2021 and the Requirement, and that he entirely accepted his relevant obligations to uphold the core values of civil servants. On the other hand, there is nothing to suggest that the Applicant was unaware of the problem with his Declaration, namely the Additional Words. But, he variously stated that:

(1)  The design of the standard declaration form was different from the usual declaration form, in that the asterisk sign in the form was below the space for signature and date and could be used in future for expansion of the scope of the Declaration’s contents to the prejudice of the maker of it.

(2)  From a legal point of view, the asterisk sign could be subject to another interpretation potentially inconsistent with the statutory provisions, hence subject to legal challenge.

(3)  He doubted whether it was suitable to apply the Declaration to Hongkong Post, in light of the various administrative malpractices which he had alleged, and which had never been dealt with, and he was concerned that he would be considered in breach of the civil service rules and regulations and thus in breach of the Declaration.

(4)  Ms Kwok had agreed to send a blank declaration form, but he had not received it, and he did not agree with her version of events.

(5)  His addition of the Additional Words did not alter the intention of the Declaration, but reflected the situation of Hongkong Post.

(6)  The Additional Words were meant to be “protective” in nature preventing variation of the contents of the Declaration after it was signed, rather than “restrictive” in nature preventing the addition of further content in the Declaration by the person making it.

(7)  Circular 2/2021 failed to explain the meaning of the asterisk sign in the standard declaration form.

(8)  Nor did the Circular 2/2021 stipulate how a “null and void” Declaration envisaged in the declaration form would be handled.

(9)  In their responses to him, the CSB failed to respond to the various points raised by him – or the CSB’s responses were illogical.

(10)  Similarly, the CSB had failed to consider his representations (about the alleged malpractices), to which Hong Kong Post had also made no response.

(11)  CSB accepted the information provided by Hong Kong Post without explanation, when that the information was disputed by him.

30.  The Applicant was informed of his interdiction by letter dated 12 April 2021.

31.  By way of a minute dated 24 August 2021, the CSB recommended to the SCS that the Applicant should be retired in the public interest, on the ground that the Government had lost confidence in the Applicant’s suitability to continue discharging his duties as a public officer. The minute sets out in some detail the exchange of correspondence between the parties and the various representations made by the Applicant, and why the CSB did not think the Applicant’s representations answered the point or concern.

32.  After taking the Applicant’s representations into account, the SCS made the Decision on 27 August 2021. The Decision was notified to the Applicant by letter dated 30 August 2021.

33.  It is also necessary to consider what happened after the Decision, because the Applicant relies upon the various steps taken by him as explanation for the delay in the commencement of these proceedings.

34.  On 7 September 2021, the Applicant submitted a petition to the Chief Executive (“CE”) of the HKSAR, requesting the Decision to be rescinded for further investigations and hearings. By letter dated 6 May 2022, the Applicant was informed of the CE’s decision to uphold the Decision. Nevertheless, the Applicant decided to ask the CE to reconsider, and eventually engaged a solicitors’ firm for that purpose, resulting in a final rejection on 19 August 2022.

35.  On 6 February 2023 – namely after a further gap of about 6 months – the Applicant lodged a complaint with the Office of the Ombudsman, complaining that the CSB had breached the law and abused its power in directing him to retire. On 20 February 2023, the Ombudsman replied to explain that by virtue of specified provisions of the Ombudsman Ordinance, the Applicant’s complaint related to appointment and removal of civil servants, over which the Ombudsman had no power to investigate.

36.  The Applicant nevertheless continued to make complaints to the Office of the Ombudsman, culminating in the Office’s final reply dated 31 August 2023, rehearsing the previous exchanges of correspondence and its five previous replies, and stating that it would no longer respond to any subsequent letters on similar matters.

C.  Intended Grounds of Review

37.  There are three grounds of review put forward in the Applicant’s Form 86, being (in summary):

(1)  the Decision erred in law as there is no statutory requirement on the formality of the Declaration;

(2)  the Decision took into account an entirely irrelevant factor (though that factor is not specifically identified);

(3)  the Decision was unreasonable, because the SCS never made enquiry into the processes at Hongkong Post.

38.  With respect, I think it is fair to say that the Grounds advanced in the Form 86 are not drafted with any great precision or clarity. Nevertheless, they can be addressed on the basis apparently put forward, as further sought to be explained in Mr Law’s written and oral submissions. I note Mr Law’s offered summary as to what is the ‘real issue’, namely whether the Court can objectively define the content of the declaration as the text in the form starting below the word “Declaration” and ending with the “*” in each of the English and Chinese versions. This ties in with one of his submissions that there was no alteration or addition to the Declaration (see below).

39.  It is settled that, for the grant of leave to apply for judicial review, the Applicant needs to demonstrate that his (or at least one of his) intended Grounds is reasonably arguable with a realistic prospect of success.

40.  The Applicant also needs to overcome the fact that, as he accepts, this application is significantly out of time. In his regard, it is trite that the Court, when deciding whether to grant an extension of time, should consider at least the following factors: (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the substantive application, and (4) any prejudice to the applicant, respondent and public administration. It can also be taken into account whether the application raises questions of general public importance and whether the questions are likely to have to be resolved by the courts in any event.

41.  Because, in considering whether to grant an extension of time, it is necessary to consider the merits, it is convenient to turn to those merits first.

D.  Merits of the Application

D.1  Ground 1

42.  Ground 1 suggests an error in law, because of the absence of a statutory requirement as to the form of the Declaration. Mr Law submitted that the Decision is irrational in the public law sense, in that (1) the Applicant had already submitted the Declaration duly signed by him, and there is no or no good reason not to accept it, and/or (2) the Decision constituted a punishment that is altogether excessive and out of proportion to the occasion.

43.  The core of the criticism seems to be that there was no requirement as to the format of the Declaration, and Mr Law therefore submitted that any deviation from the format designed by the CSB does not necessarily negate the legal sufficiency of the Applicant’s willingness and confirmation to uphold the requirements stated in the Declaration.

44.  In his oral submissions, Mr Law emphasised that the Additional Words did not add anything to the Declaration itself, and did not really alter even the format of the form.

45.  With respect, those submissions entirely miss the point. As set out by me in the Woo Tak Yan and Wong Chau Ming cases, the approach to reviewing the SCS’s decision is straightforward and requires the adoption of some common sense. The starting point is to consider, as an ordinary question of fact, whether the Applicant had duly signed and returned the Declaration by the stipulated deadline. Then, if not, it is necessary to consider whether, after taking the Applicant’s representations into account, the SCS was entitled on the application of settled public law principles to come to the view that the Applicant had failed to give any reasonable explanation for his failure.

46.  The Requirement is clear, and it is not itself the subject of any challenge in these proceedings. The way in which the Requirement was to be fulfilled is also clear, from the Circular 2/2021 and its annexes, as well as the pro forma Declaration provided to civil servants for their completion.

47.  Insofar as the argument in this application turns on the CSB requirement that there is only one form of Declaration acceptable, it is important to bear in mind the number of civil servants involved. It seems to me to be entirely reasonable and appropriate for there to have been one pro forma Declaration, which is in simple clear and specific terms, and which required the individual civil servant willing to make that declaration only to fill in his/her name and relevant personal details and sign it with his/her signature. There is no reason why the CSB should have been required to look at possibly hundreds or thousands of different offered forms of declaration, so as to decide whether each one was or was not an open acknowledgement of the acceptance and a genuine manifestation of the responsibilities of and expectations on civil servants.

48.  The consequences of a failure to make the Declaration in the required form were also made plain. On the face of the Declaration form to be filled in, by reference to the note to which the asterisk points, it was also made express that any deviation from it – by way of variation, addition or deletion – would render it null and void. It is of particular note that the Applicant wrote in the Additional Words right next to the asterisk, so that he could not possibly have failed to realise the effect of what he was doing thereby.

49.  I agree that there is some force in the submission of Mr Lam that the Additional Words rendered the Declaration as non-conforming (or null and void), regardless of the content or meaning of the words added. That is not the same as saying that the CSB has unduly fettered its approach, but the simplicity and clarity of the pro forma Declaration is such that almost any addition will at least legitimately raise a common sense question as to why the addition has been made and what it says about the civil servant’s intention as regards the Declaration.

50.  But I also accept the force in Mr Lam’s submission that the Additional Words, objectively construed, actually appear to question or challenge the applicability of the Declaration to the Hongkong Post (and, hence, to his role there as a civil servant), throwing the genuineness of the Applicant’s declaration into doubt.

51.  I also do not think that Mr Law’s offered alternative translation of the Additional Words changes the analysis. Even on that version, doubt is being expressed by the Applicant as to the applicability of the Declaration.

52.  Mr Law also submitted that the correct understanding of the Additional Words had not been grasped by the SCS. He suggested that the Additional Words were about whether the Hongkong Post could honour the Declaration after the Applicant had returned it. This is because the Applicant’s position was that he had identified and tried to resolve the problems and complaints he pursued. However, because Hongkong Post had not resolved them, that suggested it was not the Department to receive and honour the Declaration. First, this is a submission which is a little difficult to follow, where it is the maker of the Declaration that has to honour it (and sufficiently demonstrate a genuine intention to do so). But, secondly, and in any event, it appears to seek again to link the Applicant’s previous complaints with the making of the Declaration – even though they are obviously separate and, upon his own enquiry, it had been made abundantly clear to the Applicant that the two matters were separate and not connected. Indeed, on one reading, the Additional Words were calling into question whether it was right to offer or be made to give a declaration at all to the Hongkong Post.

53.  I see no reasonably arguable irrationality or disproportionality in the SCS’s conclusion that the Applicant had failed to make a due Declaration, and had failed to provide a reasonable explanation for it.

54.  Ground 1 is not reasonably arguable.

D.2  Ground 2

55.  As Mr Lam has pointed out, there is no elaboration in the Form 86 as to the alleged irrelevant factor which was taken into consideration. That remained the position even after Mr Law’s written submissions, which stated simply: “The Decision considered an entirely irrelevant factor on the signed and returned declaration provided by the Applicant. The Decision only strengthened and maintained the rigidity set by the format of the Declaration”. Mr Law did not seem to add to this point in his oral submissions.

56.  Doing the best I can, it may be that the irrelevant factor said to have been taken into account is the writing in of the Additional Words. But that was plainly not irrelevant.

57.  Ground 2 is not reasonably arguable.

D.3  Ground 3

58.  The apparent alleged unreasonableness under Ground 3 is the suggested lack of enquiry into the processes of Hongkong Post, or giving too little weight to the representations the Applicant had made in that regard. Again, the Requirement for the Declaration had nothing to do with any particular aspect of the operation of any individual Government Bureau or Department. Further, if the Applicant had formed some impression that his making of the Declaration would somehow imply his acceptance of any improper operation of the Hongkong Post, he was actually disabused of that by the conversation with the DS as early as 9 February 2021 (the contents of which conversation the Applicant has himself acknowledged).

59.  It is trite that the weight to be given to factors in the exercise of decision-making is essentially a matter for the decision-maker, subject to relatively high threshold of establishing Wednesbury unreasonableness. I have already briefly summarised how, in this case, the Applicant sought to explain the Additional Words, including by pointing out he intended a genuine acknowledgement of the acceptance of responsibilities, though he was concerned (and consistently expressed concern) about the matters of which he had long been making complaint. However, there is nothing to suggest that the CSC did not take into account any particular part of the various representations made by the Applicant, and then weigh and balance each part as she saw fit.

60.  Ground 3 is not reasonably arguable.

E.  Delay

61.  In any event, the Applicant’s application was made significantly out of time, and I see no proper basis for the grant of any extension of time within which to have brought it.

62.  Even assuming the ordinary ‘long-stop’ period of 3 months from the date of the Decision, the application was made more than 2½ years late. This is very substantial delay.

63.  That delay is not explained by the Applicant’s attempts to seek a resolution from other administrative steps. Of course, it is correct that an applicant for judicial review should ordinarily exhaust all available alternative remedies first, but any such remedies should be pursued properly and promptly, and there must be some realistic prospect that the matter would be resolved by those alternative means. That is not the position in this case.

64.  The Applicant’s petition to the CE was formally turned down in May 2022, well over 2 years before this application was issued. The Applicant then delayed, even after the CE’s dismissal of his reconsideration request, by a further 6 months before he complained to the Ombudsman. The Ombudsman rejected the complaint in February 2023, around 16 months before this application was issued. Even the last repeated rejection by the Ombudsman occurred almost 1 year before this application was issued. The rejection of the application for information made to the PSC in May 2024 provides no basis for delaying the commencement of these proceedings.

65.  In summary, (1) the length of the delay is very substantial indeed, (2) the explanation for the delay is weak, and does not justify not commencing judicial review proceedings years earlier than actually occurred, (3) the application itself has no merit, and (4) there would be substantial prejudice to the public administration if an extension of time were granted. Lastly, there is obviously no question raised of general public importance or likely to have to be resolved by the courts, when I have previously dealt with these matters in the two cases already mentioned.

F.  Result

66.  In addition to the fact that the Applicant’s application for leave to apply for judicial review was issued significantly out of time in circumstances which do not justify any grant of any extension of time, the Applicant has simply failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success.

67.  Therefore, the application for leave to apply for judicial review is dismissed.

68.  As to costs, though this is an application for leave to apply for judicial review first made on the usual ex parte basis, I invited the assistance from the SCS, which was provided through the Initial Response and the appearance of Mr Lam at the hearing. Mr Lam invites the making of a costs order against the Applicant, to be summarily assessed on the indemnity basis. Mr Lam also invites consideration of making a wasted costs order against the legal representatives of the Applicant.

69.  The basis of Mr Lam’s invitations are essentially that the Applicant and his solicitors were in breach of the Court’s orders on numerous occasions, as previously set out in the SCS’s letters to the Court dated 13 and 20 September 2024. The latest breach is in the failure to have provided hearing bundles and the Applicant’s skeleton even by the time Mr Lam prepared his skeleton. Mr Lam relies on that unacceptable litigation conduct, as he called it, as well as the fact that the application was utterly lacking in merit.

70.  Mr Law countered the suggestion that there might be consideration of indemnity costs, and any wasted costs order, in part by reference to the petty intransigence of seeking to agree translations of numerous documents, with minor differences many of which were not actually central to the proceedings. Nevertheless, I do not think I need to go into this detail.

71.  Having looked at matters overall, I am not persuaded that the possibility of a wasted costs order arises in this case. Nor am I persuaded that it is necessary or appropriate to make any award of costs on the indemnity basis. However, I am of the view – in my broad exercise of discretion relating to costs – that it is appropriate for the costs to follow the event and for the Applicant to bear the costs of the SCS, to be taxed if not agreed.

72.  The SCS has already provided a statement of costs for summary assessment. I shall permit the Applicant to file any list of objections within 14 days. Thereafter, I shall perform the assessment of costs on the papers.