TAM YUK FUN TOFFEE v. SECRETARY FOR THE CIVIL SERVICE

CACV 203/2024, [2026] HKCA 389

On appeal from [2024] HKCFI 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2024

(ON APPEAL FROM HCAL NO 1804 OF 2023)

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

A.  Introduction

1.  By a decision dated 10 July 2023 (“the Decision”), the Secretary for the Civil Service (“the Secretary”) punished the applicant, a civil servant and a teacher, by dismissal for misconduct under section 10 of the Public Service (Administration) Order (“PS(A)O”), resulting in her forfeiture of all claims to retirement benefits.[1]  The applicant mounted the proceedings below to challenge the Decision by raising four grounds:

(1)  the Secretary erred in accepting the finding of the Inquiry Committee that she had misconducted herself within the meaning of section 10 of the PS(A)O (“Ground 1”);

(2)  the Decision constituted a disproportionate interference of her right to freedom of expression and/or her right to privacy, guaranteed under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance (“HKBOR”[2]); and Article 14 of the HKBOR respectively (“Ground 2”);

(3)  the Decision was oppressive and irrational (“Ground 3”); and

(4)  the Decision was tainted with procedural impropriety for lack of reasons (“Ground 4”).

2.  In allowing the judicial review,[3] Coleman J (“the Judge”) rejected Ground 1[4] and Ground 2[5] but accepted Ground 3. In gist, he took the view that compulsory retirement might seem to be an appropriate alternative punishment and the Decision, which stripped the applicant of all retirement benefits, was so harsh and oppressive in the overall circumstances that its imposition must have involved some error of law.[6]  He did not deal with the substance of Ground 4 in light of his holding on Ground 3 after expressing some queries about the adequacy of the reasons.[7]  In consequence, he quashed the Decision.

3.  The Secretary appeals, contending that the Judge had wrongly assumed the role of the decision maker and substituted his own views on what was the proper punishment. The applicant also files a respondent notice. While she no longer pursues Ground 1, she argues that the Judge’s decision should have been affirmed on Grounds 2 and 4 as well. In respect of Ground 4, as confirmed by her counsel, Mr Jin Pao SC,[8] at the hearing, she will rely on her right to freedom of expression only.

4.  It now falls upon this Court to determine Grounds 2, 3 and 4 (as narrowed), and additionally in respect of Ground 3, whether the Judge erred in assuming the role of the decision maker.

B.  Facts

5.  We first summarize the facts, which are not in dispute, to give our discussion its necessary factual matrix.

B1.  The applicant

6.  The applicant joined the civil service as Certificated Mistress on 1 September 1995. Since then, she mostly performed teaching duties. Between 1 September 2015 and 8 September 2019, she served as a teacher in the Jockey Club Government Secondary School (“the School”) under the Education Bureau (“EDB”), teaching junior form students.

7.  On 9 September 2019, because of the investigation arising from her misconduct, the applicant was transferred to the Teacher Professional Conduct and Professional Growth Section of the Professional Development and Training Division of the EDB, where she performed non-teaching duties. She was interdicted from duty with effect from 28 August 2021 under section 13(1)(a) of the PS(A)O after the EDB decided to hold a disciplinary inquiry against her.

8.  At the time of the Decision, the applicant was 54, and divorced with no children. With 27 years of service as a Certificated Mistress, she was a Category A Officer on the New Pension Scheme, remunerated at Master Pay Scale Point 24,[9] the maximum point of her rank. She would be reaching the normal retirement age in about 4 years.

B2.  Codes of conduct

9.  At all material times, various codes of conduct were applicable to the applicant as a teacher, namely, the Code for the Education Profession of Hong Kong (Extracted Edition) dated October 1995 (“the Code”); Education Bureau Internal Circular No. 1/2010 on “Conduct and Discipline Matters of Teaching Grades Staff in Government Schools” (“EDBIC 1/2010”); and Education Bureau Internal Circular No. 4/2016 on “Code of Conduct” (“EDBIC 4/2016”). For brevity, we will refer to these codes as “the Codes” collectively below where necessary.

10.  Under the Code:

“2.1.5 A member of the profession…shall promote the highest possible image for the profession by fostering public understanding of the profession and maintaining effective public relations.

...

2.6.6 A member of the profession…shall be aware of current affairs, show concern about social problems and do his/her best to maintain a healthy social environment.

...

2.6.9 A member of the profession…shall do his/her best to nurture in students the concepts of freedom, peace, equality, rationality and democracy.”

11.  EDBIC 1/2010 relevantly stipulates:

“2. As the policy Bureau responsible for education policies, and the sponsoring and supervisory body of Government schools, [the EDB] attach great importance to maintaining a high ethical and professional standard for teaching staff in Government schools. Teaching staff of Government schools are required to observe steadfastly the ethical standard of the education profession. On the other hand, as part of the civil service, teaching staff of Government schools are also required to uphold the highest standards of integrity and probity in the civil service.

...

5. As civil servants, teaching grades staff in Government schools are liable to disciplinary action should they fail to observe any government regulation, misconduct themselves in any manner, or by their actions, bring the Government service into disrepute. In this particular regard, as explained in paragraphs 3 and 4 above, any act in breach of the Code may also constitute misconduct and subject them to civil service disciplinary action commensurate with the gravity of individual cases. They should also note that [EDB] takes a serious view of the teachers’ professional misconduct as they should act as the role model of students. As such, we adopt a ‘zero’ tolerance approach towards the improper professional conduct of Government school teachers, in particular where corporal punishment or indecency is involved. General procedures and guidelines in taking disciplinary action against staff for misconduct are laid down in EDB Internal Circular No. 14/2007 on ‘A Guide to Taking Disciplinary Action against Staff’.”

12.  The material provisions of EDBIC 4/2016 are:

“6.1 It is the Government’s duty to serve the community. Government officers should uphold the rule of law and act in good faith towards the public. They should treat members of the public with respect, courtesy, consideration and reason. They should conduct themselves in a manner consistent with their position and refrain from engaging in conduct that may embarrass [EDB]. Besides, they should at all times comply with the law and uphold the administration of justice and ethical standards governing their particular professions. The following highlights some common areas of concern of a government officer’s conduct (which are by no means exhaustive) in addition to those elaborated in Chapters 4 and 5; and

6.2 While as part of the civil service, all education professional officers are required to uphold the highest standards of integrity and probity in the civil service, they are also required to observe steadfastly the ethical standard of the education profession as prescribed in the Code for the Education Profession of Hong Kong in the execution of their professional duties. They should be fully alert that misdemeanors or professional misconduct of different levels of gravity may also result in disciplinary action to be taken against them. For teaching grades staff in the Government schools in particular, their attention is drawn to EDB Internal Circular No. 1/2010 (Conduct and Discipline Matters of Teaching Grades Staff in Government Schools) which has set out the disciplinary mechanism applicable to those teachers found to have committed any acts of professional misconduct.”

13.  As a civil servant, the applicant was also subject to the following provisions in the Civil Service Code:

(1)  §2.2, requiring civil servants to uphold core values including commitment to the rule of law, integrity, objectivity and impartiality, political neutrality, accountability for decisions and actions and dedication, professionalism, and diligence.

(2)  §3.2, on the duty to uphold the rule of law.

(3)  §3.4, on the duty of integrity including ensuring no actual, perceived or potential conflict of interest between official duties and private interests.

(4)  §3.6, on the duty to maintain impartiality.

(5)  §3.7, on the duty to maintain political neutrality.

(6)  §3.12, on dedication, professionalism and diligence aspects of work as a civil servant.

(7)  §5.7, reminding civil servants that they should ensure their involvement in, or contribution to, any public debate or discussion on public matters is in accordance with the policies and decisions of the Government of the day and is appropriate to the official positions they hold.

B3.  Facebook Posts

14.  As it is now public record, Hong Kong suffered from unprecedented social, violent unrests across the territory arising from the opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill beginning in mid-2019.

15.  In response to a call for class boycott and teachers’ strike by an education body, the EDB on 12 June 2019 issued a press release. Among other things, the press release reiterated that schools should not be used for expressing political aspirations; and called on school heads and teachers to protect their students and to serve them with professionalism; with a reminder that the right of the public including teachers to express their views on social issues should be exercised in a peaceful and lawful manner.

16.  On 13 June 2019, the Secretary for Education issued a letter to all school supervisors and principals. After expressing concerns about calls for the public to commit acts disrupting social order, the letter stated that schools should be places for students to learn, not for expressing political demands; and that teachers should under all circumstances perform their duties with continued commitment and act in compliance with professional conduct. It asked schools to be responsible for managing their staff and monitoring their performance. While recognizing respect for different views, the letter encouraged teachers to guide students to think from multiple perspectives and express their views in a peaceful and lawful manner.

17.  On the same day, the School arranged a meeting where all teachers, teaching assistants and the social worker of the School were reminded to remain politically neutral and not to impose their own personal views or take on others. Further, a document entitled “Reminder to Teachers” was distributed to the attendees, exhorting them to stay committed with professionalism and reiterating the importance of maintaining political neutrality in these terms:

“Please, every teacher within the school environment should maintain political neutrality, and not put personal views and choice on the school community, peers and students. When communicating with students, or when students are reflecting their opinions to you, or sometimes students would ask for teachers’ opinion via groups, or on some social media platform, please remember to maintain a neutral stance, listen more, to avoid your speech being taken by others to create an issue.”

18.  On 1 August 2019, the Secretary issued an open letter to all civil servants entitled “Cherishing the Core Values of the Civil Service”, reminding them:

(1)  The core values and principles of the civil service include law-abiding, dedication, impartiality and political neutrality.

(2)  Civil servants should avoid leading the public mistakenly to believe that civil servants are acting against the Government.

(3)  According to the Civil Service Code, political neutrality means that civil servants shall serve the Chief Executive and the Government of the day with total loyalty and to the best of their ability, no matter what their own political beliefs are. They shall not allow their own personal political beliefs to determine or influence the discharge of their official duties and responsibilities.

(4)  The Government will, in accordance with the established mechanisms, seriously follow up any violations of regulations by civil servants.

(5)  When civil servants express their views, they should ensure that their views would not give rise to any conflict of interest with their official duties, or might not be seen to compromise the important principle of maintaining impartiality and political neutrality when discharging their duties. Civil servants should ensure that their behaviour would not impede their performance of official duties in a fair and professional manner.

(6)  The civil service as a whole should remain united amidst all pressure and challenges, and work together to uphold the core values of the civil service and not to affect the effective operation of the Government because of personal beliefs, as that may undermine public confidence in the impartial discharge of duties by civil servants.

19.  Against the above circumstances, the applicant posted eight posts in her Facebook Account (“the Facebook Posts”) between mid-June and 5 September 2019.[10]  The Facebook Posts contained not only words but also accompanying emojis, logos and photos to reinforce the messages conveyed. As found by the Inquiry Committee, most of the Facebook Posts were directed against the police, and contained obscene, hatred, cursing, biased, provocative, insulting and defamatory elements and foul language.

20.  Although the applicant set her Facebook account to be visible by about 380 friends, the Facebook Posts entered the public domain from 5 September 2019 onwards. Shortly thereafter, the School, the EDB, the Civil Service Bureau (“CSB”) and 1823, a Government hotline, received mass complaints against her.

21.  The applicant deleted her Facebook account on 7 September 2019.

B4.  Inquiry

22.  The School conducted an internal investigation about the complaints against the applicant and submitted a report to the EDB on 2 October 2019.

23.  On 30 November 2020, the EDB, contemplating disciplinary proceedings against the applicant, wrote to ask her why an inquiry into her misconduct under section 10 of the PS(A)O should not be held.[11] After receiving written representations by her solicitors in February 2021, the EDB on 27 August 2021 informed her that the inquiry would be held. As said, she was interdicted from duty on the following day.

24.  After some preparatory steps, the Inquiry Committee, consisting of two senior civil servants, conducted the inquiry hearing on  4  and 6 January 2022. The statement of alleged misconduct complained the applicant of misconducting herself by posting the Facebook Posts:

“[which] act falling short of the standards of the professional conduct required of teachers as stated in [the provisions of the Codes cited at [10] – [12] above], having a seriously adverse impact on students and the teaching profession and bringing the Government service into disrepute.”

25.  By a report dated 28 October 2022 (“the Report”), the Inquiry Committee found that the applicant’s conduct had fallen short of the standards expected of a teacher, and had brought the Government into disrepute; and that she had misconducted herself as particularized in the statement of alleged misconduct. She was informed of the same by a letter from the Secretariat on Civil Service Discipline (“SCSD”) dated 31 October 2022.

B5.  Mitigation

26.  Upon invitation by the same letter, the applicant’s solicitors on 28 November 2022 provided submissions, arguing that the Secretary as the disciplinary authority should not accept the findings of the Inquiry Committee.[12]  A letter from the applicant herself and eight mitigation letters were also submitted. In brief, it was urged in mitigation that she had a positive character and contributions; and that she continued to suffer from depression as a result of the case, as evidenced by a psychiatric report. The appropriate punishment should take into account the right to freedom of expression and the right to privacy and should not be so heavy as to constitute a disproportionate interference with those rights.

27.  By a memorandum dated 6 January 2023, the EDB recommended to the SCSD that the applicant should be punished by dismissal to reflect the gravity of her misconduct and the management’s serious views of the matter. The SCSD by a memorandum dated 13 January 2023 sought advice from the Public Service Commission (“PSC”). On 20 March 2023, the PSC advised that the proposed punishment of dismissal was appropriate.

28.  The SCSD informed the applicant of the proposed punishment by dismissal on 22 March 2023 and invited further submissions on mitigation. The applicant’s solicitors submitted further submissions on 14 April and 18 May 2023, urging a more lenient punishment. The May letter enclosed an updated psychiatric report dated 5 May 2023, which noted that the applicant was emotional and depressed, with negative thoughts and vague suicidal ideas; and that she “regretted for the problems she made, wasting a lot of public resource and troubling everybody involved in the whole event”.

29.  By a letter dated 12 June 2023, the SCSD informed the applicant that the punishment of dismissal would be recommended to the Secretary. The applicant’s solicitors provided final submissions on 26 June 2023, submitting that in light of the mitigating circumstances, “compulsory retirement would be a more appropriate punishment than dismissal”. The letter also enclosed the applicant’s personal letter in which she expressed regret, and sought sympathy in light of her physical and mental state and impact on her health by the incident.

B6.  Decision

30.  On 3 July 2023, the Senior Principal Executive Officer (Disciplinary Secretariat) of the CSB passed the recommendation that the applicant be punished by dismissal up the chain of command within the CSB, which was eventually approved by the Secretary. On 10 July 2023, the Permanent Secretary for the Civil Service informed the applicant of the Decision:

“…[the Secretary], in exercise of the authority delegated to her by the Chief Executive, has considered [the Report] and is satisfied that you have misconducted yourself as per the charge…

Having considered the gravity of the misconduct, your service and disciplinary records, mitigating factors (including your written submissions dated 6 January 2022; your representations dated 28 November 2022, 14 April 2023, and 26 June 2023; and your Psychiatric Report dated 5 May 2023 submitted by your legal representative on your behalf) as well as precedent cases, and having regard to the advice of the [PSC], [the Secretary] has directed that you be punished by dismissal under section 10 of the [PS(A)O]. The punishment will take effect from 11 July 2023.

Upon dismissal, all claims to your retirement benefits or other like benefits and to any other benefits or advantages, including but not limited to all your earned leave and emoluments withheld during interdiction, will be forfeited in full.”

31.  Thereafter, the applicant made data access requests to the CSB and the EDB, and were provided with various documents including the internal memoranda between the EDB and the SCSD, and the PSC and the SCSD.

C.  Ground 3 – rationality challenge

32.  We find it convenient to deal with Grounds 3 and 4 first. Ground 2 on constitutionality would arise for determination only if the Decision is otherwise sustainable as a matter of administrative law. We will discuss Grounds 3 and 4 in this Part and the next before turning to Ground 2 in Part E.

C1.  Penalties available under a section 10 enquiry

33.  Section 10 of the PS(A)O, under which the inquiry was conducted against the applicant, provides:

“(1) If it is represented to the Chief Executive that an officer has been guilty of misconduct, and the Chief Executive is of the opinion that the misconduct alleged may be serious enough to warrant the dismissal or compulsory retirement of the officer, he may cause an inquiry to be made into the officer’s conduct …

(2) If after such inquiry the Chief Executive is of the opinion that the officer has been guilty of misconduct, he may inflict such punishment upon the officer as may seem to him to be just.”

Inquiry into alleged misconduct not warranting dismissal or compulsory retirement is dealt with under section 9 of the PS(A)O.

34.  Although a section 10 inquiry is triggered when the Chief Executive is satisfied that the alleged misconduct may be serious enough to warrant dismissal or compulsory retirement, the full range of penalties is still at his disposal. For as required by section 10(2), the Chief Executive may inflict such punishment upon the officer as may seem to be him to be just. The Chief Executive is not restricted to either dismissal or compulsory retirement when considering what the just punishment is. Put simply, although a section 10 inquiry may potentially lead to dismissal or compulsory retirement, the Chief Executive may only impose on the officer a punishment that is just in the overall circumstances of the case.

35.  For dismissal or compulsory retirement, the consequences are quite different. They are provided for in sections 16 and 16A of the PS(A)O respectively:

“16. Forfeiture of benefits on dismissal

  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.

16A. Forfeiture or reduction of benefits on compulsory retirement

  If an officer is compulsorily retired, the officer may be granted retirement benefits or other like benefits in full, or those benefits may be reduced or not be granted to the officer, and may be granted any other benefits or advantages that the officer is eligible to receive.”

In short, other than the mode of removal from service, the most significant difference between dismissal and compulsory retirement is the forfeiture of all retirement benefits in the former, and the grant of such benefits at the discretion of the Chief Executive in the latter. The difference will undoubtedly have a significant impact on the officer.

C2.  General approach

36.  There is a wealth of authorities on the court’s approach to a challenge against the sanction imposed by a disciplinary authority on the ground of irrationality. The leading authority on the subject is Bolton v Law Society [1994] 2 All ER 486, per Sir Thomas Bingham MR (as he then was) at pp.518B – 519E. As the case law develops, the approach enunciated in Bolton on sanctions for solicitors has been adopted in relation to other professions and is now regarded as of general application. For present purposes, a brief summary of that approach will suffice.

37.  As is now firmly established, the nature of judicial review of an administrative decision depends on the context. The rationality review, involving considerations of weight and balance with the intensity of the judicial scrutiny and the weight to be given to the decision-maker’s view, and the degree of judicial restraint, is necessarily context-driven. A single, uniform application of the Wednesbury unreasonableness test in every situation rigidly may not be appropriate: see Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, per Lord Carnwath JSC, at [60], per Lord Mance JSC [94] – [96], per Lord Sumption JSC at [109].

38.  Relevantly, in relation to the context of professional conduct, Ma CJ observed in Sin Chung Yin Ronald v Dental Council of Hong Kong (2016) 19 HKCFAR 528, at [49]:

“Clearly, it is sensible for the Court to be diffident about interfering with a disciplinary body’s assessment of matters calling for professional judgment and expertise. This is likely to be the case, for instance, where professional misconduct is alleged in connection with technical or clinical judgments or competence. It may also be the case where the unprofessional conduct raises questions of professional ethics governing, for instance, the relationship between a professional and his or her clients or patients or fellow members of the profession. But diffidence is not called for where the alleged misconduct does not concern such areas of professional expertise. The Court in Mallon v General Medical Council 2007 SC 426 expressed this as follows:

The spectrum of serious professional misconduct can range from conduct that is entirely non-clinical, such as defrauding the National Health Service or sexually harassing an employee or colleagues, to conduct in the course of clinical practice, such as the carrying out of a reckless surgical procedure. In a case of the former kind, a court might conclude that there was little to inhibit it from substituting its own judgment for that of the panel if it should have cause to differ from it. In a case of the latter kind, which involves a technical question of medical malpractice, the court is, we think, at a serious disadvantage to the panel whose decision is impugned.”

39.  In the present case, the Decision concerns the sanction imposed on the applicant for misconduct as a teacher and civil servant. A sanction of such nature is a measure imposed with the primary aim of reflecting the gravity of the misconduct; maintaining the standard of the profession; protecting the public; and preserving the public confidence in the profession. It necessitates a careful assessment of the gravity of the misconduct against the prevailing standard of the profession; and a weighing exercise with the public interest considerations in mind to decide, within the range of sanctions available, which is the most appropriate one that fully reflects the primary aim: Bolton, supra.

40.  As a disciplinary sanction is not primarily punitive in nature, which renders it fundamentally different from a criminal punishment, considerations which would ordinarily weigh in mitigation of punishment have less effect than on the ordinary run of sentences. The reputation of the profession is far more important than the fortunes of any individual member: Bolton, supra. Thus, it had been judicially observed that even when a severe penalty might have a heavy blow on an applicant, which might attract some sympathy, “sympathy is not the test” to be adopted by the disciplinary authority but duty to the public is: Au Yeung Kwok Hing v The Attorney General for and on behalf of The Commissioner of Police, CACV 205/1994, unreported, 7 February 1995, per Bokhary JA (as he then was) at pp.13 – 14. That said, it does not mean that the disciplinary authority should shut its eyes to the mitigating circumstances of the individual where appropriate. It is ultimately a matter for the authority to decide the weight, if any, is to be attached to such circumstances in the overall weighing exercise when deciding on the appropriate sanction that best serves the primary aim as elucidated.

41.  The disciplinary authority, with the requisite judgment and expertise in relation to the professional standard of its discipline, is evidently best qualified to conduct the assessment and weighing exercise in arriving at the most appropriate sanction as warranted by the circumstances in a particular case. Recognizing that the disciplinary authority is best equipped to perform the task, the court exercises a considerable degree of judicial restraint and will give due deference to the authority’s judgment as to what is an appropriate sanction. See Ghosh v General Medical Council [2001] 1 WLR 1915, per Lord Millett at [34], adopted in Lau Koon Leung v Medical Council of Hong Kong [2006] 3 HKLRD 225, per Cheung JA at [11] and per Yuen JA at [70]; Wan Pak-Kwong Raymond v The Nursing Council of Hong Kong [2023] HKCA 272, per Kwan VP at [17].

42.  It follows that the court will not lightly interfere with the sanction imposed by a disciplinary authority. To succeed on the irrationality ground, it is not sufficient for the aggrieved party to say that the sanction is extremely severe or harsh. Nor is it sufficient to raise disagreement on the weight accorded to a particular consideration, which is within the purview of the authority: Chan Kam Choi v Commissioner of Correctional Services [2016] 4 HKLRD 565, per Kwan JA (as she then was) at [26]; R (The Governing Body of X) v Office for Standards in Education, Children’s Services and Skills [2020] EWCA Civ 594, per Lindblom LJ at [44]. He must satisfy the court that the sanction is so unduly oppressive and out of proportion to the occasion that it falls outside the bounds of any decision open to a reasonable authority: Registrar of the Hong Kong Institute of Certified Public Accountants v Leung Kam Man Victor, CACV 37/2016, [2017] HKEC 149, per Lam VP (as he then was) at [13] – [14]; R v Secretary of State for the Home Department, Ex parte Hindley [1998] QB 751, per Lord Bingham at p.777A-B. So high is the threshold that even if the court were acting as the authority and might have inclined to come to a less severe sanction, the court could not intervene: Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679, per Deputy High Court Judge Andrew Cheung (as the Chief Justice then was) at [52].

43.  Moreover, the court accepts that there could be variations in sanctions imposed by differently constituted disciplinary authorities as they might reasonably take different views on the gravity of professional misconduct and/or the sanctions to be imposed. Thus mere citation of other decisions in which the sanctions imposed appear to be lighter cannot be a valid ground of rationality challenge: Registrar of the Hong Kong Institute of Certified Public Accountants v Leung Kam Man Victor, per Lam VP, at [15] – [16].

C3.  The present case

44.  In arriving at the Decision, the Secretary first took into account the gravity of the applicant’s misconduct as demonstrated by the available evidence:

(1)  The vulgar, obscene, biased and provocative languages used in the Facebook Posts, reinforced by the accompanying emojis, logos and photos, were direct attacks on the Police and their families, including children. They were totally unfounded discrimination, prejudice and even hatred against the Police and their families.

(2)  The Facebook Posts were published when Hong Kong was suffering from unprecedented social disorder perpetrated with violence and clashes with police officers deployed to maintain law and order. They had the effect of fueling the strong emotions of the public thereby exacerbating the already heightened tensions in society, which underlined the violent protests at the time. Although the applicant had set her Facebook account to be viewed by some 380 “friends”, it must have been obvious to her that there was always a real possibility that the Facebook Posts would be disseminated to the public.

(3)  When the applicant published the Facebook posts, she was bound by the Codes. Her misconduct was in total disregard and a blatant contravention of the relevant provisions of the Codes cited at Part B2 above. It completely ignored the repeated reminders by the Government to civil servants and teachers to remain politically neutral. It directly contradicted the Government’s imperative that civil servants must ensure that their involvement in public debate was in accordance with the Government’s policy and decision of the day, that is, to restore peace and order as soon as possible.

45.  Based on these facts, the Secretary concluded that the applicant’s misconduct was extremely serious and had caused grave damage to public confidence in teachers and civil servants, as reflected by the public outcry through the mass complaints launched right after the Facebook Posts went into the public domain.

46.  The Secretary next took into account and placed significant weight on a host of public interest considerations:[13]

(1)  upholding the core values, principles and the integrity of the civil service, including impartiality and political neutrality;

(2)  maintaining public trust and confidence in teachers as well as civil service; and

(3)  achieving deterrence and punitive effect on the publication or dissemination of hateful, derogatory, obscene and indecent messages on social media by civil servants occupying position of influence, such as teachers, with a view to protecting both the students and the public as a whole.

47.  Lastly, the Secretary considered the applicant’s personal circumstances, including her past performance and clear disciplinary record, the plea in mitigation made by herself and her solicitors on her behalf, and the psychiatric reports on her mental state. Importantly, the Secretary noted that the applicant did not show any remorse for her misconduct. For completeness, the Secretary did not find the comparison of other disciplinary cases referred to by the applicants’ solicitors, in which sanctions other than dismissal were imposed, useful.

C4.  The applicant’s arguments

48.  Mr Pao submits that dismissal has a devastating effect on the applicant. As such, the Secretary was expected to anxiously wrestle with whether a less severe sanction, including compulsory retirement with either full or reduced retirement benefits, should be imposed. One would also expect adequate reasons to be given explaining why such a less severe option was not considered in the light of the applicant’s individual circumstances. This is especially so since compulsory retirement is mentioned expressly as one of the possible punishments for a section 10 inquiry. However, as seen from the materials leading to the Decision, the possibility of compulsory retirement with full or reduced retirement benefits was never discussed; there was no meaningful consideration of the mitigation factors advanced on her behalf; and there was no explanation why such mitigating circumstances were not considered sufficient to merit a less severe penalty.

49.  As further developed both in Mr Pao’s written and oral submissions, the above contentions boil down to two main points:

(1)  In terms of general approach, the Secretary must consider a lesser sanction before imposing a greater one: Macleod v The Royal College of Veterinary Surgeons (The Disciplinary Committee of the RCVS) [2006] UKPC 39, per Lord Carswell at [25]-[26]; Ng Wai Sang v Secretary for Justice [1998] 3 HKC 501, per Mortimer VP at p.507C; Giele v General Medical Council [2006] 1 WLR 942, [21] and [26]; Disciplinary and Regulatory Proceeding, 10^th Edition, §10.43; Chan Cheuk Chi v The Registrar of the Hong Kong Institute of Certified Public Accountants, CACV 38/2012, unreported, 30 January 2013, at [24]. However, both as a matter of approach and evidence, the Secretary failed to consider if compulsory retirement, a lesser sanction, was appropriate. Instead, the Secretary wrongly adopted dismissal, the most severe sanction, as a starting point.[14]

(2)  The Secretary erred in giving undue weight to the need for deterrence. The Secretary further erred in concluding that the applicant had no remorse and in failing to give sufficient weight to her mitigating circumstances, in particular, her mental state.

C5.  Our views

50.  We are unable to accept Mr Pao’s submissions.

51.  Stripped to its essence, Mr Pao’s main complaint is that irrationality is demonstrated by the Secretary’s reasoning process in arriving the Decision. However, as submitted by Mr Anthony Chan SC, for the Secretary,[15] this is quite different from the applicant’s pleaded case in the Form 86, which alleged that the Decision was irrational because its effect or impact was unduly oppressive on the applicant’s rights and interests. The reasons challenge mounted (Ground 4) was based on procedural impropriety and not on the premise that the Secretary’s reasons show irrationality. Raising such a new case on appeal is impermissible. In any event, as elaborated, there is no merit in it.

52.  In relation to the first main point on general approach, Mr Pao in his written submissions contends that the disciplinary authority must consider lesser sanction before imposing a greater one, as if it is a general rule. However, when asked by the Court at the hearing, Mr Pao readily accepted that whether the disciplinary authority should do so really depends on the circumstances. In other words, he is not advocating a general rule that requires the disciplinary authority to do so in every case. In our view, Mr Pao’s ultimate stance must be correct because:

(1)  The judicial remarks made in Macleod, Ng Wai Sang and Giele, relied on by Mr Pao, did stress the importance of the disciplinary authority considering lesser sanctions before imposing a greater one. They might even give rise to an impression that, as a general rule, the authority must invariably starts with the lesser sanction available in every case. However, those judicial remarks were made in the specific factual circumstances where the court found that the lesser sanction, which the disciplinary authority did not consider, was evidently sufficient to achieve the purpose of the greater sanction imposed.[16]  In such circumstances, it might be incumbent on the authority to start with a lesser sanction, hence the judicial remarks. Thus, properly understood in context, the remarks did not lay down a general rule as Mr Pao initially contended.

(2)  Moreover, as noted in Disciplinary and Regulatory Proceeding, ibid, there are cases which on the facts plainly call for severe sanctions. Reference is made to Lawson v Solicitors Regulation Authority [2015] EWHC 1237, where Mostyn J at [26] flatly rejected the argument that the Authority had erred by not considering a lesser sanction first when on its findings, the starting point was plainly suspension. In other words, whether the authority should start with a lesser sanction is necessarily a fact-sensitive question.

(3)  Similarly, in Chan Cheuk Chi, Mr Pao, representing the appellant, argued that the Disciplinary Committee should have adopted the approach of starting with a consideration of the least severe sanction and then asked whether an order of removal was right for the misconduct in question after considering any lesser sanction. Fok JA (as he then was) did not agree that the Committee erred in the manner as contended. He at [27] observed that the Committee adopted the correct procedure of looking at the misconduct and the mitigation and deciding what sanction was appropriate. After going through the findings, he took the view that the misconduct clearly merited the penalty of suspension and did not consider that the Committee had erred in its approach; and that it was not a case in which a lesser punishment was realistically appropriate: [29] – [37].

53.  Further, in terms of evidence, contrary to Mr Pao’s arguments, the Secretary did not adopt dismissal as the starting point and had instead considered compulsory retirement with retirement benefits, as urged upon her by the applicant’s solicitors, but rejected it because of the gravity of the misconduct and the public interests at stake.[17] This is fully supported by the contemporaneous evidence which shows that:

(1)  When SCSD first invited mitigation from the applicant, after referring to sections 2 and 10 of the PS(A)O, it indicated a punishment of removal from the service might be imposed. Removal from service may take either compulsory retirement or dismissal. This indicates that dismissal was not proposed or adopted as a starting point.

(2)  As can be seen in the internal memoranda leading to the recommendation of dismissal, there were discussions on (a) the customary level of sanction such as severe reprimand with salary reduction;[18] and (b) the applicant’s representations on other more lenient sanctions such as reprimand or cancellation of registration.[19]

(3)  In the last round of representations, the applicant’s solicitors proposed compulsory retirement and urged upon the authority the consequences the applicant would face if dismissal were to be imposed.

(4)  The Secretary did have regard to all the mitigations advanced by the applicant and her solicitors but in the end decided that notwithstanding such representations, dismissal, as opposed to compulsory retirement, was the appropriate sanction, bearing in mind the gravity of the misconduct and the public interests at stake.

54.  In our view, the Secretary plainly did not err in the way as contended. For completeness, we reject Mr Pao’s complaint that the reasons for imposing dismissal are ex post facto. As seen, they are readily apparent from the contemporaneous evidence.

55.  Turning to the second main point on deterrence, Mr Pao submits that it has no rational connection with forfeiture of retirement benefits. If it was aimed at deterring the applicant, compulsory retirement would readily render it impossible for her to engage in any misconduct as a civil servant in the future. If it was aimed at deterring other civil servants, there is no evidence that the Decision would be published or other civil servants would be informed of it. We disagree.

56.  How best to achieve deterrence is a matter of judgment depending on the facts. The Secretary as the disciplinary authority is in the best position to make the call. On the facts of this case, deterrence is plainly a very weighty factor. The Decision carries with it the clear and loud message that civil servants and teachers are expected to fully and strictly follow the Codes and any failure to do so will be met with serious consequences commensurate with the misconduct. Mr Pao’s submission on the lack of evidence to bring it to the attention of the civil service is speculation only. There is no sufficient basis for the court to interfere.

57.  Next, we reject Mr Pao’s complaint that the Secretary erred in finding that the applicant had showed no remorse. We have summarized her mitigations at [26], [28] and [29] above. What her solicitors said on her behalf, as outlined at [26], does not indicate any remorse. As seen at [28] and [29], the applicant expressed regret “for the problems she made, wasting a lot of public resource and troubling everybody in the whole event”. Read in context, she was expressing regret for the costs and inconvenience occasioned by the disciplinary proceedings. She had not expressed a single word of remorse for her misconduct. The Secretary cannot be faulted for finding that she had showed no remorse.

58.  Mr Pao prays in aid the matters listed at [141] of the Judgment with reference to which the Judge queried if the Secretary had given real and significant weight to the applicant’s mitigating circumstances. He argues that the failure to properly consider those matters underscored the oppressiveness of the Decision. We again disagree.

59.  As seen, the applicant’s disagreement over the weight attached to the applicants’ circumstances in the overall weighing exercise by the Secretary, which is essentially Mr Pao’s submissions, is not a sufficient basis for the court to interfere. When the evidence is considered objectively in the round, there is no basis to query that the Secretary had erred in the manner as contended. Further, the Judge’s query by reference to the factors listed at [141] of the Judgment does not help. For it shows that Judge had erred in assuming the role of the decision maker, which is a wrong approach in dealing with an irrationality challenge.

60.  In conclusion, on the evidence, the Secretary had correctly approached the question of sanction, and properly evaluated and weighed the gravity of the applicant’s misconduct, the public interests at stake, and the applicant’s individual and mitigating circumstances. Dismissal, though harsh, falls within the reasonable range of sanctions. There is no basis for the court, in exercising its supervisory jurisdiction in judicial review, to interfere. Ground 3 must fail.

C6.  The Judge’s errors

61.  In arriving at the contrary conclusion, the Judge, with respect, erred in wrongly assuming the role of the decision-maker.

62.  In approaching the matter, the Judge at [141] of the Judgment asked the question what was the appropriate penalty for the applicant’s misconduct. However, as submitted by Mr Chan, the proper question to ask instead is whether dismissal falls within the reasonable range of sanctions in the circumstances of the present case. Misguided by this approach, the Judge went on to query if the Secretary had given sufficient weight to the matters listed. At the risk of repetition, we would reiterate that the assessment and weight to be attached to the factors relevant to the exercise at hand is a matter for the Secretary. On the facts of this case, there is no proper basis for the court to interfere. More specifically, at [141(7)], the Judge referred to the apparent disparity between the applicant’s case and an earlier case involving the Deputy Commissioner of Inland Revenue who was convicted and given a custodial sentence for an offence of dishonesty against the Government, but was more leniently treated. However, as seen, the mere citation of other decisions in which sanctions appear to be lighter is not a valid ground of rationality challenge.

63.  Mr Pao seeks to support the Judge’s reasoning by relying on Giele, where Collins J at [26] observed that “[i]t was not a question of deciding whether erasure was wrong but whether it was right for the misconduct in question after considering any lesser sanction.”  Insofar as Mr Pao is arguing that the disciplinary authority must always start with a lesser sanction, we have already explained why such a proposition is unsupportable. In any event, on the facts, and contrary to the Judge’s view, the Secretary did consider but decided against compulsory retirement as the appropriate sanction. The fact that the Secretary did not opt for a lesser sanction does not without more render dismissal oppressive. It does not somehow involve some unidentified errors as held by the Judge.

64.  To complete our discussion, we will address Mr Chan’s complaint that the Judge’s ruling on rationality is incongruous with his ruling on proportionality. In gist, he argues that as the Decision was found to have passed muster through the more structured and stringent proportionality analysis, it was wrong in the context of this case for the Judge to decide that it failed the less intense irrationality analysis. Since this argument is not dispositive of Ground 3, we only need to say a few words about it.

65.  For rationality, the court essentially asks if the decision concerned goes beyond the range of reasonable responses open to the decision-maker. It involves scrutiny of the weight attached to the competing factors and the balance struck among them by the decision maker. The intensity of scrutiny varies according to context.

66.  For proportionality, the court applies a more structured four-stage analysis to examine if the restriction on the fundamental right by the decision is constitutional. It involves four steps, asking:

(1)  if the restriction pursues a legitimate aim;

(2)  if the restriction rationally connected to the legitimate aim;

(3)  if the restriction is no more than necessary to accomplish that legitimate aim; and

(4)  if a reasonable balance has been struck between the societal benefits and the inroads made into the fundamental right of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.

See Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, per Ribeiro PJ at [52] – [53], [134] – [135].

67.  At the third and fourth steps, the court examines the weight accorded to the competing interests and the balance struck by the decision maker, an exercise similar to the rationality analysis. However, there are three main differences:

(1)  a proportionality test may require the court to form its own view of the balance which the decision maker has struck, not just whether it is within the range or rational balances that might be struck;

(2)  the proportionality test may require attention to be directed to the relative weight accorded to competing interests and considerations; and

(3)  even heightened security at common law is not necessarily enough to protect fundamental rights.

See R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, per Lord Steyn at [27] – [28]; referred to by Lord Sumption JSC observed in Pham v Secretary of State for the Home Department [2015] 1 WLR 1591, at [107]. Despite the differences, most cases would be decided in the same way whichever approach is adopted: per Lord Steyn, ibid.

68.  In the present case, there is an overlap between the rationality and proportionality analysis. Both involve evaluating and weighing the public interest considerations and the applicant’s individual circumstances, including mitigation advanced on her behalf, although, as explained, the focus and the intensity of scrutiny may differ.

69.  After finding that the Decision passed the third step of the proportionality analysis and as such it was unlikely to fail at the fourth step, the Judge had this to say:[20]

“Subject to visiting the question of oppression specifically in the context of Ground 3 (see below), it seems to me that a fair balance has been struck between (a) the need to protect general societal interest (including the maintenance of public trust in teachers and the civil service) and (b) any inroads into the Applicant’s freedom of expression flowing from the imposition of a punishment.”

Turning to rationality, the Judge accepted the applicant’s submission that the difference is that the focus is not on proportionality but whether the overall impact of the Decision is oppressive.[21]

70.  Having qualified his view on the fourth step of the proportionality test and after finding that the Decision was oppressive, it seems reasonable to expect the Judge to revisit the question if a fair balance had been struck. Since he did not, one might argue that he must have been satisfied that a fair balance had been struck notwithstanding the oppressiveness of the Decision. Or one might argue that had he done so, he would have found that the Decision to fail at the fourth step because of its irrationality. Thus analyzed, any incongruity in the Judge’s rulings does not necessarily support Mr Chan. But in light of our conclusion on rationality, which differs from the Judge, and our view on Ground 2, the point is of no real consequence.

D.  Ground 4 – reasons challenge

D1.  General principles

71.  The general principles for reasons challenge are well-established. For present purpose, the broad summary below, which should not be taken as definitive or exhaustive, will suffice.

72.  First, sufficiency of reasons is dependent on the context in which the decision maker is operating, including the legal framework in question, the facts and history of the case: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279, per Li CJ at pp.290J – 291A; Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, per Stock JA (as he then was) at [98]; Chan Yan Cheong v Research Grants Council of University Grants Committee [2023] 1 HKLRD 808, per Chu VP at [94].

73.  Second, the court approaches the question of sufficiency with common sense and pragmaticism: cf. Oriental Daily Publisher Ltd, per Li CJ at p.291F-G. As Sir Thomas Bingham MR (as he then was) observed in Clarke Homes Ltd v Secretary of State for Environment [2017] PTSR 1081, at p.1089H, the question is to be resolved on a straightforward down-to-earth reading of the decision in question without excessive legalism or exegetical sophistication. It is because the decision is addressed to parties well aware of the issues involved and arguments advanced: South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, per Lord Brown at [36]. Accordingly, the court will not embark on an overscrupulous exercise, dwelling on the minutiae or looking for slips, gaps or omissions. The primary focus is on the sufficiency of the reasons as conveyed to an informed audience.

74.  Adopting such an approach, the court accepts that the reasons for a decision may be gleaned from more than one document in a chain or communications between the decision-maker and the affected party: Ng Shek Wai v Hong Kong Institute of Certified Public Accountants [2021] HKCA 1920, per Chow JA at [24].

75.  Third, as to the general requirements of sufficiency, Lord Brown had this to say in South Bucks District Council v Porter, ibid:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issue in the dispute, not to every material consideration. …”

76.  Fourth, it is only when reasons are defective in substance that they should be considered inadequate: Oriental Daily Publisher Ltd, per Li CJ, ibid. For in a reasons challenge, the gravamen is procedural impropriety, that is, lack of reasons, which results in substantial prejudice to the aggrieved party: see PVQ & Others v Permanent Secretary for Security [2021] HKCA 444, per Au JA at [28]. The applicant bears the burden of showing that he has been substantially prejudiced by the failure to provide an adequately reasoned decision: South Bucks District Council v Porter, per Lord Brown, ibid.

D2.  The present case

77.  Mr Pao’s main complaint is that there was clearly a lack of adequate reason by the Secretary to explain why dismissal was the appropriate punishment and why the applicant’s mitigating circumstances were not considered sufficient to warrant a lesser punishment. Reliance is placed on Brennan v Health Professions Council (2011) 119 BMLR 1, at [45] – [47] for the proposition that reasons should demonstrate why important planks of an affected person’s mitigation are not accepted and why sanction is proportionate to the misconduct and for the individual. In this regard, Mr Pao prays in aid the Judge’s misgivings expressed about the adequacy of the reasons given by the Secretary.[22]

78.  Moreover, Mr Pao submits that the duty to give adequate reasons cannot be discharged by giving ex post facto reasons. The adequacy of reasons must be evaluated with reference to the contemporaneous record.

79.  We are unable to accept Mr Pao’s submissions because:

(1)  Before the Decision was made, the parties had been engaged in several rounds of communications, which spanned about 8 months. The applicant, with legal assistance, had placed before the Secretary all her personal circumstances and mitigations, including her past record, her mental state, and the grave consequences of dismissal. As seen, the Secretary did take into account all these matters before imposing dismissal as punishment. When read in their entirety and context, the communications conveyed by and on behalf of the Secretary to the applicant contained clear and cogent reasons why dismissal as opposed to other lesser sanction, in particular, compulsory retirement, was imposed. To recap, the applicant’s misconduct was extremely serious, which had significantly undermined public interest and confidence in teachers and civil servants; she had showed no remorse; and her individual circumstances and mitigations could not outweigh the public interest considerations.

(2)  Once the communications have been properly read and understood as above, the Judge’s misgivings fall away. As argued on behalf of the Secretary, the Judge had impermissibly assumed the role of the decision-maker.

(3)  As explained already, the Secretary’s reasons are well supported by the contemporaneous evidence. They are not ex post facto as contended by Mr Pao.

80.  In conclusion, Ground 4 must fail.

E.  Ground 2 – constitutional challenge

81.  As is now the applicant’s position, she would only challenge the Decision as a disproportionate interference of her right to freedom of expression under BL 27 and HKBOR 16.

82.  BL 27 provides:

“Hong Kong residents shall have freedom of speech …”

HKBOR 16 relevantly stipulates:

“…

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to … impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print … or through any other media of his choice.

(3) The exercise of the rights provided in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary–

(a) for respect of the rights and reputation of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

As held in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, per Ribeiro PJ at [15], there is no difference in terms of substance between the rights to freedom of speech under BL 27 and freedom of expression under HKBOR 16. It means that both rights carry with them special duties and responsibilities: see HKBOR 16(2). Since they are not absolute, they may be restricted if the restrictions pass the proportionality test laid down in Hysan: see [67] above.

83.  As was the case below, it is common ground that the Decision pursues three legitimate aims, namely, (1) upholding the core values, principles and the integrity of the civil service (including impartiality and political neutrality); (2) maintaining public trust and confidence in teachers and civil service; and (3) achieving the punitive and deterrent effect against the publication or dissemination of hateful, derogatory, obscene and indecent messages on social media by civil servants in a position of influence, such as teachers with a view to protecting both the students and the public as a whole. It is also not disputed that the Decision is rationally connected with these aims. In short, the first and second steps of the proportionality test are met. The battle lines between the parties are drawn at the third and fourth steps.

E1.  The Judge’s views

84.  The Judge first dealt with the intensity of scrutiny thus:

“122. In any event, I think that the relevant standard of scrutiny in the present circumstances is more towards the ‘manifestly without reasonable foundation’ test. It is well settled – see, for example, Leung Ka Lau v The Medical Council of Hong Kong [2021] HKCFI 2914 at §61 – that on such questions, the Court adopts a multi-faceted approach and takes into account, amongst other things, (1) the significance of the right involved, (2) the extent of the interference with the right by the impugned measure, (3) the nature of the measure, and (4) the identity of the decision-maker. Though the right to freedom of expression is an important right, I do not think the Applicant can be regarded as having by the Facebook Posts engaged in political speech or a debate on questions of public interest, and the relevant context for the consideration is clear, where the Inquiry Committee and subsequently the Secretary were well placed with relevant experience and expertise and professional judgment to deal with the management and discipline of civil servants and teachers in the civil service.

123. Nevertheless, I would also state that I do not think a difference of result would flow from adopting a standard of scrutiny more towards the ‘no more than reasonably necessary’ end of the spectrum.”

85.  On the third step, the Judge said:

“126. I accept Mr Chan’s submissions that: (1) by any measure, the Applicant was not making political speech or contributing to rational public discourse; (2) the Secretary was entitled to adopt the Inquiry Committee’s conclusion that the Facebook Posts with indecent logo, insulting, cursing and foul language, full of enmity towards the police during the period of significant political/social unrest, tension and turbulence constituted a serious breach of the Code and other requirements; (3) the Facebook Posts contain gratuitous and general attacks on police and their families; (4) the public has high expectations of teachers (who nurture future members of society) and civil servants (who serve the public); (5) it is of special concern that amongst the Facebook Posts was the apparent suggestion by innuendo that bullying or isolation of students who are children of police officers was justified.

127. I am less persuaded that the mere number of complaints lodged tells very much about the level of public opprobrium, as it should be recognised that there were echo chambers on different sides of the then apparently polarised elements within society. But I do not think the number of complaints is itself significantly weighty in the assessment as to whether the Facebook Posts fall below the relevant standard.

128. I also accept that, where it is undisputed that teachers and civil servants are permitted to express their views, provided that they do so peacefully and lawfully and take care to prevent their views being misused, the interference with the Applicant’s freedom of expression was limited. It is also relevant that the Secretary was well-placed to deal with matters of discipline within the civil service, supported by the Inquiry Committee and its findings, the EDB, the SCSD and the PSC (each with their own experience and specialism).”

86.  In consequence, the Judge held at [129] of the Judgment that the Decision passed the third step and subject to the question of rationality, the fourth step as well.

E2.  The applicant’s arguments

87.  Mr Pao contends that the Judge’s analysis at the third step was incomplete and hence flawed. By referring to various overseas authorities, including Strasbourg cases, Mr Pao argues that the Judge failed to consider what he submits to be relevant considerations:[23]

(1)   The intrinsic nature and consequences of the dismissal. Dismissal is by nature a “very severe measure” as it causes the applicant to lose her livelihood and renders meaningless the skills she has acquired through years of training. The dismissal of a school teacher has been regarded as a “severe interference with her existing rights”, in contrast to other less drastic options which would permit her to continue teaching.

(2)   The practical reality of dismissal. Dismissal would only (rightly) be considered less severe if it did not “take away [her] career opportunities in other schools”.

(3)   The existence or consideration of less restrictive alternatives. For example, if the decision-maker had painstakingly wrestled with the appropriateness of the sanction, then it would be more proportionate.

(4)   Whether the applicant sought to improperly influence or indoctrinate pupils at school, or that the speech affected the work of the teacher.

(5)   Whether the applicant had good quality of work / an unblemished record prior to the misconduct.

(6)   Whether the professional misconduct was also of a criminal nature.

(7)  The political context of the speech in question.

(8)  The nature and wording of the speech in question (was it discriminatory, or contrary to the constitution, or political speech, etc), bearing in mind that (i) BL 27 and HKBOR 16 protect speech that may be “disagreeable, unpopular, distasteful or even offensive to others”, and (ii) there must be evidence of a clear intention to bring about the commission of acts of violence, intimidation, or hostility, or an imminent risk of such acts occurring before speech can be labelled as “hate speech”.

88.  Mr Pao submits that the Judge did not consider the first to sixth factors and only some others in the context of Ground 3 when they are also relevant to Ground 2. Had the six factors been properly evaluated, the Decision was clearly a disproportionate interference with the applicant’s right to freedom of expression because:

(1)  The dismissal of the applicant is severe. She would forfeit all her retirement benefits and her career would be effectively ended as a result.

(2)  There was no proper consideration of less severe sanctions. Under a proportionality analysis, the burden of justification rests squarely with the Secretary.

(3)  The speech did not affect the way the applicant discharged her teaching duties. Indeed, she had a 25-year unblemished record.

(4)  There was no hint that the applicant attempted to indoctrinate or improperly influence the children at the School.

(5)  There is no evidence that the applicant intended for students or parents to see the Facebook Posts.

(6)  The Facebook Posts did not attract criminal sanction.

89.  As to the fourth step, Mr Pao submits that the Decision does not pass the “fair balance” test in light of the Judge’s ruling on Ground 3. He ought to have found that the Decision resulted in an unacceptably harsh burden on the applicant and did not pass constitutional muster.

E3.  Our views

90.  We first deal with the intensity of judicial scrutiny. One of the factors that is relevant in determining the appropriate standard is whether the Secretary, as the decision maker, is better placed than the court in assessing what is needed in the public interest in terms of expertise and experience: Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, per Ribeiro PJ at [116]. We therefore share the Judge’s inclination as expressed at [122] of the Judgment. That said, like the Judge, we do not think there is any material difference in terms of the result if we apply the “no more than reasonably necessary” standard.

91.  We agree with the Judge’s analysis at [126] – [128] of the Judgment entirely. We have no hesitation in rejecting Mr Pao’s criticism that his analysis is flawed because:

(1)  The factors listed by counsel are derived from different cases, the facts of which vary from one to another. On a closer look, though couched in different terms or with varying emphasises, they concern the predicaments the individual teacher might face as a result of the sanction, the seriousness of his misconduct, and the public interests engaged. These considerations also feature in the present case and the Judge obviously had them in mind when he carried out the judicial scrutiny.

(2)  The weight to be accorded to and the balance to be struck among the misconduct in question, the public interests engaged and the circumstances of the individual teacher, including the predicaments arising from dismissal, must depend on the actual context of the case. Here, we can see no error in the Judge’s scrutiny in this regard.

92.  For completeness, we need to deal with a “timing” point raised by Mr Pao.

93.  Mr Pao submits that the relevant time for assessing the necessity and degree of interference with the applicant’s right to free speech is at the time of interference, not at the time of the tense background against which the speech was uttered. As the issue grew less sensitive, the necessity of the interference would be bound to recede with the passage of time: Perinçek v Switzerland (2016) 63 EHRR 6, at [249] – [250]. The same applies here, he reasons.

94.  We accept Mr Chan’s submission that this appears to be an afterthought unsupported by evidence.

95.  In any event, Perinçek is distinguishable on the facts. There, the applicant in May, July and September 2005 made public statements denying the genocide of the Armenians in 1915. As a result, he was convicted of racial discrimination under the Criminal Code. Against such context, the European Court of Human Rights said:

“249. .... while controversial remarks about traumatic historical events were always likely to reopen the controversy and bring back memories of past sufferings, a lapse of time of some 40 years made it inappropriate to deal with them with the same severity as 10 or 20 years previously. The Court has taken up that line of reasoning in other cases as well.

250. In the present case, the lapse of time between the applicant’s statements and the tragic events to which he was referring was considerably longer, about ninety years, and at the time when he made the statements there were surely very few, if any, survivors of these events. While in their submissions some of the third parties emphasised that this was still a live issue for many Armenians, especially those in the diaspora, the time element cannot be disregarded. Whereas events of relatively recent vintage may be so traumatic as to warrant, for a period of time, an enhanced degree of regulation of statements relating to them, the need for such regulation is bound to recede with the passage of time.”

96.  In the present case, the Facebook Posts were made about 4 years before the Decision. The lapse of time is far much shorter. Moreover, how the passage of time between the impugned conduct and the disciplinary measure would impact on the proportionality analysis must depend on the actual circumstances of the case. Here, the legitimate aims identified at [83] above are always of immense importance. The need to accomplish them does not diminish simply because of the lapse of time between the Facebook Posts and the Decision. When the matter is viewed in the round, the Judge was correct in concluding that the Decision satisfied the third step of the proportionality analysis.

97.  As to the fourth step, Mr Pao’s only argument is that no fair balance was struck because the Decision was found to be irrational by the Judge. However, in light of our conclusion on rationality, this argument must fail. For avoidance of doubt, we hold that a fair balance has been struck and the fourth step is satisfied.

98.  In conclusion, Ground 2 fails.

F.  Disposition

99.  For the foregoing reasons, we allow the Secretary’s appeal, dismiss the respondent’s notice filed by the applicant, set aside the Judge’s order, and dismiss the judicial review.

100.  On costs we make an order nisi that the applicant do pay the Secretary’s costs of the appeal and below, with a certificate for two counsel, to be taxed if not agreed. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Annex

The Facebook Posts as described in the Statement of Alleged Misconduct

(1)  “Next Tee Pattern” and an obscene graphic captioned “黑警開OT警嫂玩3P”;

(2)  “渣滓，喪盡天良！” in response to a post containing the message of “(CLS!!! 咁樣係執法咩？) 黑警琴晚屈斷年青人隻手過程” and a photograph;

(3)  “黑警真係應該死全家㗎！” and “不過唔係家禽類嘅女人，又點會揀爛仔嚟嫁吖？”;

(4)  “差佬一係自己仆街受傷，一係俾隊友打傷。”, “#究竟受咩訓練㗎”, “#每年出幾多錢糧”, “#智障冇藥醫” and “#係咪腦萎縮” in response to a post containing the message of “原來有啲咁治癒嘅片段” and a photograph;

(5)  “港豬，醒未？”, “#好想爆粗”, “#我哋屋企嚟㗎” and “#呢啲仆街應該死全家喇啩”;

(6)  “616百萬行 Slogan: 暫你老母！” in response to a post containing a photograph of the Chief Executive of the Government of the Hong Kong Special Administrative Region;

(7)  “小人為達目的，不擇手段。講得啱，之前之後，前線有任何破壞傷人，入晒差佬數！” in response to a post containing the message of “吓？扮示威者捉示威者？唔該第日將前線嘅【暴力】，全部入佢地數！” and a photograph;

(8)  “根據每日記招，警察都係英勇、克制、合理同有禮貌㗎喎！警察子女自豪都嚟唔切，點會怕被欺凌呢？”

Highly improper messages posted or disseminated

(1)  “Next Tee Pattern” and an obscene graphic captioned “Black Cops working OT Their wives having 3P”;

(2)  “Scum, utterly without conscience!” in response to a post containing the message of “(CLS!!! Is this how law enforcement is done?) The process of black cops breaking a youth’s arm last night” and a photograph;

(3)  “The whole family of the black cops should die!” and “However, if (they were) not women of poultry, who would choose to marry a villain?”;

(4)  “The cops either get hurt by failing on the ground themselves, or get beaten up and injured by their teammates”, “#What training did they receive”, “#How much were paid as salary every year”, “#No cure for mental retardation, and “#Is that brain atrophy”, in response to a post containing the message of “So, there was such a healing clip” and a photograph;

(5)  “Hong Kong pigs, wake up yet?”, #Really want to swear”, “#This is our home” and “#Such jerks, their whole family should die, right’;

(6)  “616 Million March Slogan: Suspend your mother!”, in response to a post containing a photograph of the Chief Executive of the Government of the Hong Kong Special Administrative Region;

(7)  “Wretches will stop at nothing to achieve their goals. That’s right, before or after, whatever damages and injuries caused at the frontline, consider them done by the cops!” in response to a post containing the message of “What? Pretend to be a protester to catch protesters? Please blame all the frontlines’【violence】on them in the future!” and a photograph;

(8)  “According to daily press conference, the police are all brave, restrained, reasonable and polite! Children of police couldn’t be prouder, why would they be scared of being bullied?”