WOO TAK YAN v. SECRETARY FOR CIVIL SERVICE

CACV 230/2022

[2022] HKCA 1624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2022

(ON APPEAL FROM HCAL NO 1640 OF 2021)

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J U D G M E N T

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

INTRODUCTION

1.  This is the Applicant’s appeal against the order of Coleman J dated 24 May 2022 refusing to grant him leave to apply for judicial review of the decision (“the Decision”) of the Secretary for Civil Service (“the Secretary”) made on 1 September 2021 and conveyed to the Applicant on 3 September 2021 that the Applicant be retired from the civil service in the public interest under s 12 of the Public Service (Administration) Order (“PS(A)O”).

2.  By letter dated 9 June 2022, the Applicant consented to the present appeal being disposed of on paper without an oral hearing. Having considered the documents filed by the parties, we consider it appropriate to deal with this appeal on paper, and now proceed to do so.

BACKGROUND FACTS

3.  The basic facts of this case are relatively straight forward, but the course of the correspondence between the Applicant and the Government was lengthy and dense. For the purpose of this judgment, the following brief summary of the background facts, taken largely from the written judgment of Coleman J dated 24 May 2022 (“the Judgment”), should suffice.

4.  The Applicant was formerly a civil servant working in the Environmental Protection Department (“EPD”).

5.  In 2020, the Civil Service Bureau (“CSB”) decided to impose a requirement (“the Requirement”) that all civil servants should duly sign and return a declaration (“the Declaration”) confirming that they would uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties, and be responsible to the HKSAR Government.

6.  The Requirement was conveyed to civil servants, including the Applicant, by way of a Civil Service Bureau Circular No 2/2021 (“the Circular”) dated 15 January 2021. The Circular stated, so far as relevant, as follows:

“Purpose

This circular promulgates the requirement that all civil servants of the Government of the Hong Kong Special Administrative Region of the People’s Republic of China (‘HKSAR Government’) who were appointed to the civil service before 1 July 2020 should declare that they will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (‘Basic Law’), bear allegiance to the Hong Kong Special Administrative Region (‘HKSAR’), be dedicated to their duties and be responsible to the HKSAR Government…

Background

2. It has consistently been the duty of civil servants to uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government under the Basic Law and the Civil Service Code. All civil servants should in no uncertain terms acknowledge and accept these duties.

3. In order to enhance civil servants’ awareness of the expectations and responsibilities brought on them by their official positions, this circular introduces an arrangement to require all civil servants who were appointed to the civil service before 1 July 2020 to declare that they will uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government. This is 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.

…

5. Against the background set out above, all civil servants will be required to sign a declaration in the manner specified below save that civil servants appointed to senior positions such as Heads of Department will be additionally required to take an oath, the contents of which would be the same as the declaration referred to in paragraph 6 below.

Requirement for all Civil Servants

6. Heads of Department shall require all civil servants working in their bureaux / departments to sign a declaration (at Annex A) …

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 adhere to the core values of the civil service which underpin good governance 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…”

7.  It can be seen from Annex A annexed to the Circular that the person making the Declaration is required to fill out his or her ‘Name’, ‘Hong Kong Identity Card No.’, ‘Rank’, ‘Signature’ and ‘Date’ on the printed lines next to those items on that document.

8.  By letter dated 27 January 2021, EPD invited all EPD officers, including the Applicant, to sign and return the Declaration in accordance with the Requirement by a stipulated deadline of 24 February 2021 (a period of four weeks).

9.  That letter triggered a series of lengthy correspondence between the Applicant and EPD, including 29 memos from the Applicant dated between 1 and 23 February 2021, making “enquires” about the Circular and the Requirement. For the purpose of the present appeal, it is not necessary to set out the details of those enquiries and EPD’s responses thereto, because it was not the Applicant’s position that the CSB’s imposition of the Requirement was unlawful, or that he did not understand what he was required to do in order to fulfil the Requirement. His position was that he had duly complied with the Requirement by returning to EPD a Declaration (“the 1^st Declaration”) in the form of Annex A on 23 February 2021, with his name, ID number and rank printed in the right places, and the date (in traditional Chinese calendar) hand written in Chinese. Against the reference to ‘Signature’ were the handwritten words “天日昭昭” (read from right to left).

10.  EPD, having consulted CSB, declined to accept the Applicant’s 1^st Declaration as having been duly signed by him, and issued a memo to the Applicant dated 24 February 2021 notifying him of CSB’s advice that “it should be treated as failure to have duly signed the declaration where the Government will, based on the facts of each case, initiate action to terminate the service of the officer”. The Applicant was reminded of §7 of the Circular and that he should duly sign and return an original declaration by the deadline of 24 February 2021.

11.  In response, the Applicant re-submitted the 1^st Declaration by fax (“the 2^nd Declaration”) and by hand (“the 3^rd Declaration”) to EPD on 24 February 2021, inserting again the words “天日昭昭” (read from right to left), so that those words appeared twice in the space for signature. The 3^rd Declaration was made in front of the staff with responsibility for accepting the Declarations from civil servants.

12.  By letter dated 5 March 2021, EPD sought from the Applicant his explanation for his failure to duly sign and return the Declaration before the deadline of 24 February 2021.

13.  The Applicant’s initial response was by way of his memo dated 8 March 2021. In a further memo dated 9 March 2021, the Applicant asked for an acknowledgement of receipt of his signed declaration despatched on 23 February 2021. On 10 March 2021, the Director of EPD replied to the Applicant that as he had already received and read a letter to him pointing out EPD’s statement that they had not received a duly signed declaration before the deadline, no acknowledgement of receipt would be issued.

14.  On 9 April 2021, EPD submitted a report, in Form CSB/CD-01-2021, to CSB, recommending that consideration be given to requiring the Applicant to retire from the civil service in the public interest under s 12 of the PS(A)O, on the ground that the HKSAR Government had lost confidence in the Applicant’s suitability to continue discharging his duties as a public officer.

15.  By letter of 12 April 2021, the Applicant was notified that he was interdicted from duty with immediate effect.

16.  CSB agreed with EPD’s view that the Applicant had not put forward any reasonable explanation for his failure to duly sign and return the Declaration. CSB issued a letter of intent to the Applicant on 3 May 2021, informing him of CSB’s intention to take section 12 action and inviting him to make representations within 14 calendar days, which the Applicant did by a memo dated 15 May 2021 (which enclosed a further document said to be an integral part of the memo, but made on a “without prejudice” basis).

17.  Having taken into account the Applicant’s representations, CSB did not consider that the Applicant had put forward any valid ground for varying the recommendation of retiring him in the public interest under s 12 of the PS(A)O. By its memo dated 26 July 2021, the Public Service Commission (“PSC”) supported CSB’s recommendation.

18.  On 3 August 2021, PSC’s advice was conveyed to the Applicant, who was invited to provide any final representations within seven calendar days. It was specifically explained to the Applicant that, according to EPD’s records, the words “天日昭昭” had not been used by the Applicant as his signature in other documents before his submission of the 1^st, 2^nd and 3^rd Declarations. Hence, none of them was considered duly signed. It was also mentioned that the Applicant had not provided any justification which would warrant varying the recommendation of retiring him in the public interest.

19.  The Applicant provided his final representations by way of letter dated 10 August 2021, which the Judge summarized at §54 of the Judgment as follows:

“(1) it was only in CSB’s letter dated 3 August 2021 that the Applicant was told for the first time that irrelevant wording had been inserted by him into the signature box on the Declaration …;

(2) he had used different signatures from time to time during his service over 30 years, as he attempted to show by producing further documents (such as a consumption voucher scheme registration form and a Small Claims Tribunal Form, signed with ‘昭昭日天’) …;

(3) to say that his prior declaration at the Home Affairs Department appears to be irrelevant was an unfounded allegation, because none of the relevant government departments had considered his forms as not duly signed …;

(4) if his signature on the Declaration was ambiguous, no one at the EPD had sought to clarify it with him …;

(5) there is no rule that using a signature or any ‘irrelevant wording’ not used before would be considered as not duly signed …;

(6) no one present at the time he signed the 3^rd Declaration told him that it was not duly signed …;

(7) he was still awaiting responses to previous enquiries and requested documents …”.

20.  CSB considered that the Applicant had not put forward any new or valid ground which would warrant varying the recommendation of retiring him in the public interest under s 12 of the PS(A)O. Accordingly, the Decision was made on 1 September 2021, and notified to the Applicant by CSB’s letter of 3 September 2021.

THE JUDGMENT

21.  On 2 December 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Decision. The Applicant’s intended grounds of review, as summarized by the Judge at §57 of the Judgment, were as follows:

“(1) illegality (abuse of power): there was no prior and specific express requirement on the form of signature for the purpose of the declaration;

(2) procedural unfairness (infringement of the right to be heard): the Applicant was not provided with the documents he requested;

(3) illegality: failing to take into account relevant factors, and taking into account irrelevant factors;

(4) unequal treatment: other civil servants were given ample opportunities to remedy their declaration with guidance following ‘neglect or refusal’, but not ‘failure’;

(5) unreasonableness: the declaration submitted by the Applicant ought to have been regarded as duly signed;

(6) illegality: the Decision was not made in accordance with section 12”.

22.  The Judge held an oral hearing of the leave application on 23 May 2022, and gave the Judgment on 24 May 2022 rejecting the Applicant’s intended grounds of review.

23.  In respect of Ground (1) of review - no prior or specific express requirement on the form of signature for the purpose of the Declaration, the Judge held that:

(1)  The question to be answered was whether the person making the Declaration pursuant to the Requirement could be seen objectively to have made and demonstrated a genuine and open acknowledgement of the acceptance of the responsibilities of and expectations on civil servants, and to have faithfully and truthfully committed to upholding and abiding by the obligations set out in the Declaration.

(2)  The relevant Bureau or Department seeking the Declaration must logically have the power to decide or determine whether any particular declaration form was duly signed, even if that was subject to potential judicial scrutiny under the principles of public law.

(3)  From the common sense perspective, the requirement that the Declaration be duly signed identified that the basic elements of a signature should be present, so as to show a genuine intention to be bound, and the possibility of forming the objective view that the signatory had assented to the contents of the Declaration. What would or would not amount to being duly signed required having regard to the context, and applying common sense and reasonable judgment. It must be obvious that any signature had to be real, true or valid.

(4)  Not even the Applicant suggested he did not really know what was required of him, namely, that he had to provide his signature to show his assent to the Declaration. The Applicant purported to sign using words or a phrase (not a name), and in a way which had never previously been used as his signature within his working civil service role. The phrase “天日昭昭” was more of a slogan[1], not a name or a signature. The Applicant must have known full well the meaning of the words, phrase or slogan which he placed in the signature box, and that it was a significant departure from his usual signature for official documents in the EPD.

(5)  The first intended ground for review was utterly without merit[2].

24.  In respect of Ground (2) of review - procedural unfairness because the Applicant was not provided with the documents he requested, the Judge held that the Applicant was clearly aware of the signature issue from the outset, and all relevant documents had been provided. Also, the Applicant was given numerous occasions to make representations prior to the making of the Decision. There was no material irregularity[3].

25.  In respect of Ground (3) of review - failure of the Secretary to take into account relevant factors, and taking into account irrelevant factors, the Judge held that the Applicant had failed to identify any factor which was said to have been relevant but left out of the consideration, or irrelevant and brought into the consideration. Further, the question whether the Declaration was duly signed was a question of law and a question of common sense[4].

26.  In respect of Ground (4) of review - unequal treatment because other civil servants were given ample opportunities to remedy their declaration with guidance following “neglect or refusal” but not “failure”, the Judge held that that was a failure, or a neglect or a refusal, on the part of the Applicant to duly sign the Declaration. There was no differentiation in the Secretary’s handling of cases by reference to whether it was a failure or a neglect or refusal[5].

27.  In respect of Ground (5) of review - unreasonableness of the Decision because the declaration submitted by the Applicant ought to have been regarded as duly signed, the Judge held that it was essentially the same complaint under Ground (1)[6].

28.  Lastly, in respect of Ground (6) of review - the Decision was not made in accordance with s 12 of the PS(A)O, the Judge noted that the Form 86 gave no indication as to what it was that allegedly rendered the Decision as not having been made in accordance with s 12. In respect of the complaint raised in the Applicant’s Reply to the Secretary’s Initial Response about the absence of any report being called for by the Chief Executive, the Judge considered such compliant to be obviously misconceived because “[t]he relevant pro forma Form CSB/CD-01-2021 was specifically created because there had been a call for any relevant report, and for the purposes of any relevant bureau or department to follow a proforma pattern for reporting cases involving its officers in connection with the neglect, refusal or failure to comply with the Requirement. In this case, that form was filled in by the EPD and submitted to the CSB”[7].

29.  Accordingly, the Judge dismissed the Applicant’s application for leave to apply for judicial review.

THE APPEAL

30.  The Applicant’s Notice of Appeal dated 6 June 2022 consists of 18 paragraphs. As observed by Mr William Liu (for the Secretary), the Applicant’s Notice of Appeal and his written submissions in support of the appeal are difficult to comprehend. Mr Liu has helpfully summarized the Applicant’s Notice of Appeal as raising the following 8 broad grounds of appeal:

(1)  The Judge erred in failing to consider or give proper weight to the Secretary’s failure to disclose all information requested by the Applicant, or the fact that the Secretary disclosed new information only in the Initial Response.

(2)  The Judge erred in failing to take into account the Secretary’s significantly different representations or bases of the recommendation in the process leading to the Decision to retire the Applicant from the civil service in the public interest.

(3)  The Judge erred in failing to take into account the Secretary’s failure to give sufficient reasons or any reason at all in respect of the Applicant’s failure to duly sign and return the Declaration, and to provide a reasonable explanation for such failure.

(4)  The Judge erred in failing to take into account that the Applicant’s right to be heard had been infringed, in particular due to the Secretary’s failure to disclose all information.

(5)  The Judge erred in failing to appreciate the difference between “failure” and “neglect or refusal” to duly sign the Declaration.

(6)  The Judge erred in failing to find on the facts that there was no “calling of any report” by the Chief Executive, and thus the Decision was not made in accordance with s 12 of the PS(A)O.

(7)  The Judge erred in finding that the Applicant had “from the start sought to obfuscate, obscure, and obstruct”, and in rejecting the Applicant’s submission that “time is not relevant to a signature”.

(8)  The Judge was biased against the Applicant.

DISCUSSION

31.  We now deal with each of the grounds of appeal raised by the Applicant in the Notice of Appeal.

32.  In respect of Ground (1) of appeal, the Applicant has failed to show that any information which was material to the Decision was not disclosed by the Secretary or was only disclosed in the Secretary’s Initial Response dated 10 January 2022. The essential factual issue that had to be determined by the Secretary was whether the Applicant had duly signed and returned the Declaration by the stipulated deadline of 24 February 2021. That was a straight forward question of fact. The Secretary found that the Applicant had failed to duly sign the Declaration. The Secretary also considered that the Applicant had no reasonable excuse for his neglect, refusal or failure to do so. We do not see what information which the Applicant alleged was not disclosed by the Secretary or was only disclosed in the Initial Response could have a bearing on the Secretary’s consideration of those matters. The Applicant must also have been aware, from reading §7 of the Circular, that the consequence of his neglect, refusal or failure to duly sign and return the Declaration would probably lead to the Government initiating action to terminate his service. The Judge was correct in finding that the Applicant was clearly aware of the signature issue from the outset and all relevant documents had been provided to him[8], and his protestation that he lacked sufficient information or documents to address the alleged failure to “duly sign” the Declaration was baseless[9].

33.  In respect of Ground (2) of appeal - failure to take into account the Secretary’s significantly different representations or bases of the recommendation:

(1)  In EPD’s report to CSB on 9 April 2021, EPD recommended that, in view of the Applicant’s neglect, refusal or failure to duly sign and return the Declaration by the stipulated deadline without reasonable explanation, consideration be given to requiring the Applicant to retire in the public interest under s 12 of the PS(A)O on the ground that the Government had lost confidence in his suitability to continue discharging his duties as a public officer.

(2)  The same basis was given in (i) CSB’s letter dated 3 May 2021 to the Applicant informing the latter of the intention to invoke s 12 of the PS(A)O against him, (ii) CSB’s memo to PSC dated 15 July 2021 seeking advice on whether the Applicant should be retired in the public interest under s 12 of the PS(A)O, and (iii) CSB’s letter dated 3 August 2021 to the Applicant giving him a final opportunity to make any further representations.

(3)  There is no substance in the Applicant’s complaint that the Secretary’s had made significantly different representations or bases of the recommendation in the process leading to the Decision to retire him from the civil service.

34.  In respect of Ground (3) of appeal, the Secretary’s reasons for the Decision were fully set out in, inter alia, CSB’s letters to the Applicant dated 3 May 2021 and 3 August 2021. The Applicant could not have been left in any doubt as to the reasons for the Decision, namely, that he had neglected, refused or failed to duly sign and return the Declaration by the stipulated deadline without reasonable explanation by reason whereof the Government had lost confidence in his suitability to continue discharging his duties as a public officer, or why he was considered to have neglected, refused or failed to duly sign the Declaration (see §66 of the Judgment). As observed by the Judge, “what the Applicant seems to suggest is that he did not know how he might – or must – provide his real, true or valid signature. Most people would think that proposition merely has to be expressed for it to be seen as nonsensical” (§65 of the Judgment), and the Applicant “must have known full well the meaning of the words, phrase or slogan which he placed in the signature box, and that it was a significant departure from his usual signature for official documents in the EPD” (§69 of the Judgment).

35.  Ground (4) of appeal is, in essence, a repetition of Ground (1) which we have already dealt with above.

36.  In respect of Ground (5) of appeal, the Applicant’s conduct can properly be characterized as a “failure” and also a “neglect or refusal” to duly sign the Declaration. It is made clear at §7 of the Circular that “[n]eglect, 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 adhere to the core values of the civil service … 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”. There is no differentiation between “failure” on the one hand and “neglect or refusal” on the other, and we can see no proper basis for treating them differently in the present context. The Judge is correct to find that there is no substance in the Applicant’s complaint about unequal treatment.

37.  In respect of Ground (6) of appeal:

(1)  It is based on s 12(1) of the PS(A)O, which states as follows -

“The Chief Executive may, at any time if it is represented to him that the retirement of an officer is desirable in the public interest, call for a report from the head of any department in which the officer is served. The officer shall be informed of the grounds on which his retirement is contemplated under this section and be given an opportunity to make representations.”

(2)  The Applicant’s complaint is that the Chief Executive (acting through his delegate, the Secretary) had not “called” for any report from EPD concerning the Applicant, and thus there was non-compliance with the procedure contemplated under s 12(1) of the PS(A)O.

(3)  As earlier mentioned, EPD submitted to CSB on 9 April 2021 a report on the Applicant based on the “pro forma Form CSB/CD-01-2021”, which the Judge said “was specifically created because there had been a call for any relevant report, and for the purposes of any relevant bureau or department to follow a proforma pattern for reporting cases involving its officers in connection with the neglect, refusal or failure to comply with the Requirement” (§87 of the Judgment). The Applicant submits that there was no evidence in support of this statement, which was adopted from the “say-so” in the Secretary’s skeleton submissions dated 17 May 2022.

(4)  We have reservation on whether the Applicant should have been permitted to raise the point about the absence of any report being called for by the Chief Executive because, as mentioned by the Judge at §§86 and 87 of the Judgment, he gave no indication as to the basis for his contention that the Decision was not made in accordance with s 12(1) of the PS(A)O in his Form 86 and the point was only belatedly raised in his Reply to the Secretary’s Initial Response (at §12(iii)).

(5)  Even if, for the sake of the argument, the report in the present case could not be regarded as having been called for by the Chief Executive (acting through his delegate, the Secretary), but was initiated by EPD, and there might technically have been a departure from the procedure laid down in s 12(1) of the PS(A)O, we do not consider that the Applicant has suffered any substantive or procedural unfairness. Since the remedy of judicial review is discretionary, and it is plain on the facts of the present case that the Applicant had deliberately failed, neglected or refused to comply with the Requirement, we do not consider that leave to apply for judicial review should be granted merely because of a technical non-compliance with s 12(1) of the PS(A)O.

38.  In respect of Ground (7) of appeal, the Judge was entitled, on the facts of the present case, to express the view that the Applicant had “from the start sought to obfuscate, obscure, and obstruct”. The Judge was right to reject the Applicant’s submission that “time is not relevant to a signature”, having regard to the fact the Applicant was required to duly sign and return the Declaration by a stipulated deadline. We would add that the issue of the “time” of a signature is also relevant to another aspect of the present case, namely, whether a particular form or style of signature has been adopted by a person as his signature at the time when he/she puts down such “signature” on a particular document. As found by the Judge, the Applicant had never previously used the words “天日昭昭” as his signature within his working civil service role prior to the 1^st, 2^nd and 3^rd Declarations. In the premises, at the time when he signed those documents, he must have realized that his purported signature was a “significant departure from his usual signature for official documents in the EPD”, as held by the Judge at §69 of the Judgment.

39.  In respect of Ground (8) of appeal, the allegation of bias on the part of the Judge is completely baseless and without foundation. The Applicant has not put before the Court the transcript of the hearing before the Judge to make good his allegations that the Judge got involved “in the battle field”, or of “taking personally against the Applicant’s queries/representation” or “seeming to take personal attack against the Applicant”. There is also no basis to suggest that the Judge exaggerated “the alleged ‘saga’ by hearing [the application] instead of paper disposal”. It was within the Judge’s discretion to direct an oral hearing of the leave application. The Applicant’s bare allegation of bias against the Judge cannot constitute a valid ground of appeal.

40.  In all, none of the Applicant’s grounds of appeal has merits.

41.  There are 2 other matters that we wish to mention in passing. First, in so far as the Applicant may have raised in his written submissions additional grounds of complaint against the Judgment which have not been raised in the Notice of Appeal[10], the Applicant is not entitled to rely on such additional grounds and they will not be dealt with in this judgment.

42.  Second, in the Form 86, the Applicant wrote the words “天日昭昭” in the box intended for his signature. In his supporting affirmation filed on 2 December 2021, he also put down the words “天日昭昭” as his signature. In our view, the Form 86 was not properly signed and the affirmation was not properly affirmed by the Applicant. However, neither of these matters affects our consideration of the present appeal.

DISPOSITION

43.  The Applicant’s appeal is rejected, and the Notice of Appeal is dismissed, with costs to the Secretary to be summarily assessed. The Secretary shall have leave to file and serve a statement of costs (limited to 2 pages) within 14 days from the date of this judgment, and the Applicant shall have leave to file and serve a statement of objections (limited to 2 pages) to the Secretary’s statement of costs within 14 days thereafter. Subject to such further directions as may be given, the Court will assess the Secretary’s costs summarily without further notice to the parties.