TAM YUK FUN TOFFEE v. SECRETARY FOR THE CIVIL SERVICE

HCAL 1804/2023

[2024] HKCFI 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1804 OF 2023

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J U D G M E N T

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A.  Introduction

1.  There is perhaps a world of difference between (1) a quiet chat with a handful of friends, conducted at home or in hushed tones in a quiet corner of a bar, and (2) numerous Facebook posts posted over the space of several weeks and visible to hundreds of “friends” on a private page but otherwise with no suggestion of confidentiality. This case is concerned with the latter situation.

2.  The Applicant joined the civil service and served as a schoolteacher for 27 years. By a decision (“Dismissal Decision”) contained in a letter dated 10 July 2023, the Secretary for the Civil Service (“Secretary”) directed that the Applicant be punished by dismissal under section 10 of the Public Service (Administration) Order (“PS(A)O”).

3.  The Dismissal Decision flowed from various posts (“Facebook Posts”) made by the Applicant on her Facebook account, where each of the Facebook Posts were able to be seen by “friends” only (as opposed to being “public”). The acts of posting the Facebook Posts were alleged to be misconduct, and were considered by an Inquiry Committee which found misconduct proved. Up to that time, the Applicant had an unblemished record of conduct. After several rounds of representations, the Secretary made the Dismissal Decision, which was the harshest possible punishment in that, upon her dismissal with effect from 11 July 2023, all claims to the Applicant’s retirement benefits or other benefits and advantages would be forfeited in full.

4.  By these proceedings, commenced by Form 86 dated 9 October 2023, the Applicant applies for judicial review of the Dismissal Decision, and seeks an order that the Dismissal Decision be quashed.

5.  On behalf of the Applicant, it has been suggested that this judicial review seeks to defend the right of a schoolteacher to express her personal views on her private Facebook account outside the education setting.

6.  In summary, the Applicant’s grounds of review – which are to an extent intertwined – are that:

(1)  Ground 1: The Secretary erred in accepting the finding by the Inquiry Committee that there was “misconduct” on the part of the Applicant within the meaning of section 10 of the PS(A)O.

(2)  Ground 2: The Dismissal Decision constitutes a disproportionate interference with the Applicant’s constitutional right to freedom of expression guaranteed by Article 27 of the Basic Law (“BL 27”) and Article 16 of the HKBOR (“BOR 16”), and/or her right to privacy guaranteed by Article 14 of the HKBOR (“BOR 14”).

(3)  Ground 3: The Dismissal Decision is oppressive and thus irrational in the public law sense.

(4)  Ground 4: The Dismissal Decision is tainted with procedural impropriety, in that the Secretary failed to give any or any adequate reasons for accepting the finding by the Inquiry Committee that the Applicant had misconducted herself as per the charge in the Statement of Alleged Misconduct, and/or directing that the Applicant be punished by dismissal under section 10 of the PS(A)O.

7.  I granted leave on the papers, and gave directions to bring the matter to a substantive hearing on 11 April 2024.

8.  At that hearing, the case was extremely well argued on both sides. The Applicant was represented by Mr Anson Wong Yu Yat of Counsel, and the Secretary was represented by Mr Anthony Chan SC, leading Mr Alvin Hor, Acting Senior Government Counsel. At the end of the hearing, I reserved my decision to be handed down later.

9.  This is my Judgment.

B.  The Facebook Posts

10.  The Applicant joined the civil service as Certificated Mistress on 1 September 1995. Before the Dismissal Decision, she had 27 years of service with the Government. Immediately prior to being re-tasked as a result of the events which led later to her interdiction and dismissal, the Applicant served as a teacher in the Jockey Club Government Secondary School (“School”) under the Education Bureau (“EDB”) from 1 September 2015 to 8 September 2019.

11.  From mid-June 2019 to 5 September 2019, the Applicant posted the material Facebook Posts on her social media account.

12.  The timing of the Facebook Posts was during a period of almost unprecedented civil unrest in Hong Kong. It was also predominantly during school summer vacation time. It was exam period in June, and there were no classes until early September. Therefore, as she has sought to point out, the Applicant did not really have much chance to be in contact with students during the material period. She was moved to perform non-teaching duties as from 9 September 2019.

13.  Each of the 8 Facebook Posts subsequently referred to in the Statement of Alleged Misconduct featured an icon identifying that each Post was for “friends only” (and so not open to the wider public). Therefore, according to the Applicant, the Facebook Posts were visible to only around 380 “friends” – at one point described as “close personal friends”.

14.  In the way they were described in the Statement of Alleged Misconduct for the Inquiry Committee, the 8 Facebook Posts were set out as follows (with English translation added):

Highly improper messages posted or disseminated

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

(ii) “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

(iii) “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？”

(iv) “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

(v) “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”

(vi) “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

(vii) “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

(viii) “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

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

(ii) “Scum, utterly without conscience! Please widely share/spread, let more people see this” 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

(iii) “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?”

(iv) “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 healing clip” and a photograph

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

(vi) “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

(vii) “Wretches will stop at nothing to achieve their goal. 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

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

15.  It should be noted that the above descriptions of the Facebook Posts do not include the numerous emojis used by the Applicant (some of which suggest the intention to curse, others perhaps sarcasm and ridicule), nor the logos and photos which obviously add to the context and meaning. On any view, many of the expressions used were foul and insulting. The Secretary says that the content included obscene, hatred, cursing, biased, provocative, insulting and defamatory elements.

16.  There were two further Facebook posts which were considered by the School, before the School decided to refer the Applicant’s conduct to the EDB for investigation. Whilst those two posts were not identified in the Statement of Alleged Misconduct, the Inquiry Committee had regard to them and considered them to be relevant to the Inquiry Hearing and to its findings (see below).

17.  The Facebook Posts made by the Applicant entered the public domain starting from 5 September 2019.

18.  Between 5 and 27 September 2019, 110 complaints against the Applicant were lodged with the EDB, the Civil Service Bureau (“CSB”) and 1823 (a government hotline receiving complaints on government services among others). The Applicant was alleged to have posted highly improper messages on her social media (i.e. her Facebook page), some of which were also covered in media reports. Further, the School received 109 emails and 138 telephone calls concerning complaints against the Applicant from members of the public between 5 September 2019 and 2 October 2019.

C.  Further Administrative Context

19.  At the material time, there were a number of guidelines, codes and/or circulars providing guidance on the conduct of a teacher, as applicable to the Applicant. They included:

(1)  the Code for the Education Profession of Hong Kong (Extracted Edition) dated October 1995 (“Code”);

(2)  Education Bureau Internal Circular No. 1/2010 on “Conduct and Discipline Matters of Teaching Grades Staff in Government Schools” (“EDBIC 1/2010”); and

(3)  Education Bureau Internal Circular No. 4/2016 on “Code of Conduct” (“EDBIC 4/2016”).

20.  The material paragraphs of the Code are as follows:

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.

21.  The material parts of EDBIC 1/2010 are as follows:

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”.

22.  The material parts of EDBIC 4/2016 are as follows:

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.

23.  Further, as a civil servant, the Applicant was subject to the relevant provisions of the Civil Service Code (the then applicable version having been promulgated in 2009). Those provisions included:

(1)  §2.2, which required 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, which elaborated on the duty to uphold the rule of law.

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

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

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

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

(7)  §5.7, which provided civil servants 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.

24.  In the evidence filed for the Secretary, it has also been pointed out that the EDB and the CSB issued press releases and/or letters in view of the social incidents occurring in and after June 2019.

25.  On 12 June 2019, the EDB issued a press release in response to the class boycott and teachers’ strike initiated by an educational body. The EDB reiterated that school should not be used for expressing political aspirations; thanked school heads and teachers for commitment to work, calling on them to continue to protect their students and to serve them with professionalism; and expressed respect for the right of members of the public including teachers and students to express their views on social issues in a peaceful and lawful manner.

26.  On 13 June 2019, the then Secretary for Education issued a letter to all school supervisors or principals. The letter included the expression of concern about appeals on social media calling on the public to commit acts disrupting social order, as they might inflame sentiments and incite panic; stated that schools should be places for students to learn, not for expressing political demands; stated that teachers should under all circumstances perform their duties with continued commitment and act in compliance with professional conduct; required schools, as employers, to be responsible for managing their staff and monitoring their performance; and, recognising respect for different views, encouraged teachers to guide students to think from multiple perspectives and express their views in a peaceful and lawful manner.

27.  On 1 August 2019, the then Secretary issued an open letter to all civil servants titled ‘Cherishing the Core Values of the Civil Service’. The letter instructed civil servants that:

(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.

28.  Also relevant is the fact that on 13 June 2019 the School arranged a meeting during which 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. At that meeting a ‘Reminder to Teachers’ of the same date was distributed to all attendees. In addition to the exhortation for colleagues to stay committed with professionalism, the document included the following (in English translation):

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.

29.  These are all matters to which regard was had during the Inquiry Hearing (see below).

D.  The Inquiry Committee and Report

30.  On 5 September 2019, following complaints received by the School, the Applicant was interviewed by the Principal and Vice Principal of the School. Subsequently, at the School’s request, the Applicant submitted statements on 25 September 2019 and 10 October 2019 respectively. In those statements, amongst other things, the Applicant stated:

(1)  When she watched the news on television on 12 June 2019, she had begun to pay attention to social incidents related to the fugitive law amendment exercise.

(2)  Since mid-June 2019, she had been expressing her feelings about these social incidents on Facebook.

(3)  She used Facebook for private communication with her friends, which did not include students and their parents.

(4)  The complainants used the relevant Facebook posts without her consent, or the complainants were not her friends and the relevant information was obtained by hacking her Facebook account.

(5)  Her expression of views and thoughts on her Facebook page did not affect her work, including remaining neutral and professional in class.

(6)  She had deleted her Facebook account on 7 September 2019.

31.  Following internal investigation, the School submitted an investigation report to the EDB for its consideration on 2 October 2019.

32.  On 30 November 2020 – i.e. more than a year later and so, it might be thought, with little sense of urgency – the EDB sent a letter to the Applicant inviting her to state any grounds or give any information as to why an inquiry into her alleged misconduct under the PS(A)O should not be held. On 17 February 2021, the Applicant’s solicitors – who have remained her solicitors throughout, including for the purpose of these proceedings – submitted explanations for the Applicant, denying breach of the relevant codes and circulars, and denying that her acts constituted misconduct or were acts that would bring the Government service into disrepute. It was emphasised that the Applicant’s Facebook page (with around 380 friends, with no students or parents, and put on private setting) was part of her personal or social life.

33.  The EDB did not consider there to be sufficient grounds for not conducting an inquiry, and on 27 August 2021 informed the Applicant that the inquiry would be held. The Applicant was interdicted from duty the following day.

34.  Whilst there is no judicial review challenge to the Inquiry Committee’s proceedings, Ground 1 is directed at the Secretary’s acceptance of the Inquiry Committee’s finding that the Applicant was guilty of misconduct. Hence, whilst there is no suggestion of any procedural impropriety, it is inherent in Ground 1 that the Inquiry Committee reached the incorrect, or perhaps impermissible, conclusion. It is, therefore, appropriate to set out to some extent the matters as were dealt with before the Inquiry Committee.

35.  As indicated above, the Inquiry Hearing was held under section 10 of the PS(A)O, the relevant provision concerning misconduct warranting dismissal or compulsory retirement. The Inquiry Hearing was also conducted in accordance with the procedures provided for in the Public Service (Disciplinary) Regulation (“PSDR”).

36.  The Statement of Alleged Misconduct set out the particulars of the charge in the following terms:

Particulars

  You, TAM Yuk-fun, Toffee, misconducted yourself, while you were employed as Certificated Mistress of the Education Bureau, in that –

  From mid-June 2019 to 5 September 2019, you posted or disseminated in your social media account on Facebook highly improper messages with details set out in the attachment, such act falling short of the standards of the professional conduct required of teachers as stated in paragraphs 2.1.5, 2.6.6 and 2.6.9 of the Code for the Education Profession of Hong Kong (Extracted Edition) of October 1995 and those required of government teachers as stated in paragraphs 2 and 5 of the Education Bureau Internal Circular No. 1/2010 on “Conduct and Discipline Matters of Teaching Grades Staff in Government Schools” and paragraphs 6.1 and 6.2 of the Education Bureau Internal Circular No. 4/2016 on “Code of Conduct”, having a seriously adverse impact on students and the teaching profession and bringing the Government service into disrepute.

37.  The attached details of the allegedly highly improper messages have already been set out above. I will refer to the Facebook Post individually as “Post 1”, “Post 2”, etc.

38.  The Inquiry Committee comprised two senior civil servants. On 8 September 2021, a briefing was arranged for the Applicant to inform her of the hearing procedures, her rights during the inquiry and the administrative arrangements of the hearing. Copies of all documentary evidence, a list of witnesses invited to give evidence at the hearing, relevant regulations and procedures for the disciplinary proceedings and a copy of the Guide (as defined below) were passed to the Applicant, who was invited to indicate within a specified deadline her intention to plead guilty or not guilty at the Inquiry Hearing.

39.  On 15 September 2021, the Applicant submitted via her solicitors her intention to plead not guilty to the alleged misconduct. Her application to be assisted by legal representatives was approved on 8 October 2021. Indeed, she was represented at the Inquiry Hearing by Mr Wong, who has represented her in these proceedings.

40.  The Inquiry Hearing was conducted on 4 and 6 January 2022. The language used was Cantonese (with English occasionally). The Inquiry Hearing led to the Inquiry Committee’s Report dated 28 October 2022 (“Report”). What occurred at the Inquiry Hearing, including the presentation of evidence and argument, and the reasoning of the Inquiry Committee in reaching its conclusions, are all apparent from the Report.

41.  At the commencement of the hearing, the Applicant and all witnesses were briefed on how the hearing would be conducted. The Inquiry Committee informed the Applicant that throughout the process she might elect to remain silent, but if she elected to remain silent, the Assisting Officer presenting the case of alleged misconduct was entitled to comment upon the silence and the Inquiry Committee was entitled to interpret that silence as the Inquiry Committee thought appropriate.

42.  The Applicant pleaded not guilty to the charge. The Assisting Officer called five witnesses to give oral evidence and presented documentary evidence in addition. The witnesses were the Principal, the Vice-Principal, and the Senior Executive Officer, all of the School, and a Senior School Development Officer and a School Development Officer, both of the regional office of the EDB.

43.  The Assisting Officer made his opening address, including why the Facebook Posts were considered as having breached the relevant circulars and code of conduct of the EDB. Each of the five witnesses were then presented, and they gave examination-in-chief, and were subjected to cross-examination by Mr Wong on behalf of the Applicant, with some re-examination from the Assisting Officer.

44.  It may be noted that the Applicant’s case was advanced through cross-examination including on the basis that the Applicant did not admit that the Facebook Posts had been posted by her on her Facebook account (apparently because she had deleted her account and could not remember nor confirm whether the Facebook Posts were indeed hers).

45.  The Applicant elected not to give evidence and did not call any witnesses.

46.  The Assisting Officer then made closing submissions, including as to the meaning of misconduct, and that it need not have a direct relation with teaching duties. He addressed each of the Facebook Posts and their meaning, broadly as follows:

(1)  As to Post 1, the message conveyed that the Applicant would use the logo next time she made a T-shirt, when any reasonable adult reader would understand the logo and caption to mean when a male “black cop” was having overtime work dealing with the protests at the time, his wife would engage (or be engaged) in “3P”, i.e. three party sex. Such post could not lead to rational comment and social incidents but would only generate hatred and insult towards the Police. It was completely inappropriate for the Applicant as a teacher to depict sexual behaviour on a social media platform which could be accessed by 380 persons.

(2)  And to Post 2, it was a re-post of another person/entity, containing the word “CLS” (an acronym of the transliteration of Cantonese foul language meaning “fucking crazy”). The Applicant’s added message exacerbated the hatred, and her encouragement of readers to broadcast it widely was exactly contrary to the Applicant’s submissions that the Facebook Post were (or intended by her to be) private communications with her friends on Facebook. It was also common knowledge that the mobile phone had the function of capturing screens, and the Applicant should have known that once a message was posted on Facebook, she could not control its circulation.

(3)  As to Post 3, the first part of it was a direct curse against the police and their families. The second part was a reference to a prostitute, and the whole Post meant that only female prostitutes would choose to marry male police officers. The Post 3 could not foster rational discussion, but would only incite hatred.

(4)  As to Posts 4, 5, and 6, the language used was foul language, reminiscent of various Cantonese cursing. Statements such as querying whether police officers were retarded only serve to insult/abuse and had no useful purpose. The messages, read as a whole, did not serve to foster rational discussion.

(5)  As to Post 7, it should be understood with reference to its nature as a re-post of an original post referring to police tactics of using undercover officers to arrest protesters suspected of committing crimes and a possible downside of this tactic, namely that other citizens might in future suspect persons in protesters’ costumes to be undercover officers and a tribute the violent acts committed by such protesters to the police. The way in which the topic was presented was not conducive to a rational discussion on the topic, and the imbalanced view presented was inconsistent with a teacher’s duties to nurture rationality.

(6)  As to Post 8, this was the worst amongst the Facebook Posts because it touched directly on the duty of a teacher to protect and enlighten students. The message was about abuse of police officers’ children in the school setting, using sarcasm to condone isolation of police officers’ children by other children. The Post reflected a mindset which was dangerous for a teacher.

47.  The Assisting Officer pointed out that as the Applicant had chosen not to give evidence, there was no evidence about her subjective state of mind or whether she had different explanations when posting the Facebook Posts. Therefore, the Inquiry Committee was invited to interpret the Facebook Post objectively from the perspective of an ordinary Hong Kong citizen about the situation in June to September 2019 and to consider whether the Applicant was exercising her freedom of expression, or whether such exercise would even be tolerated in the liberal school of thought on freedom of expression.

48.  The Assisting Officer also submitted that the Applicant should have been cautious in her use of the Facebook account, where each of the Facebook Post was a voluntary posting accessible to 300 to 400 people who could re-post or widely circulate the messages. To say that the Facebook Posts were re-posted without the Applicant’s consent was not a reason for not taking disciplinary action. To say that the Applicant was a victim of doxxing was irrelevant.

49.  Mr Wong’s submissions on behalf of the Applicant included that:

(1)  The Inquiry Committee should focus on two points, being (a) the Applicant was alleged to have posted or disseminated in her social media account, not disseminated to the public, and (b) there was no evidence to prove that the Facebook Posts were posted within the period as alleged.

(2)  Even if the Inquiry Committee ruled that the Facebook Posts were posted by the Applicant, it should ask whether the act of posting by itself had a seriously adverse impact as alleged and bring the Government service into disrepute. But for the incident of doxxing, blowing up the issue, there would not be any adverse impact as alleged.

(3)  The Applicant was heavily traumatised by the continuous acts of doxxing, which was a causative background to be considered.

(4)  The Applicant neither intended nor caused the dissemination of the Facebook Posts, which were only intended to be shared with her private friends.

(5)  In Post 2, the Applicant was not asking others to disseminate her own views, but to disseminate the views of the post by another person.

(6)  The Facebook Post were outside the education setting, and there was no evidence that the Applicant had disseminated any improper messages in her teaching role or in executing her professional duties.

(7)  It could not fairly be inferred from the 13 June 2019 ‘Reminder to Teachers’ that teachers had been given a general reminder on opinions expressed on social media platforms. Rather, it was concerned about communications with students, including communications on social media, and had nothing to do with how Facebook might be used to express views when the teacher was not communicating with students or not acting in execution of professional duties.

(8)  On the meaning of the Facebook Posts:

(a)  Post 1 might refer to police officers who used excessive force in the execution of duties, not to the police in general.

(b)  Post 2 probably denoted the use of excessive force, and the term “CLS” could also mean “comment, like and share”. That there was a reference to widely spreading or sharing in Post 2 and not the other Facebook Posts meant that it could not be said that the other messages were also meant to be disseminated.

(c)  As to Post 3, it was not strongly contested that inappropriate words were used, but purely venting emotions or using cursing language was not completely forbidden in personal or social life.

(d)  As to Posts 4, 5 and 6, solicitors and barristers would occasionally use foul language in their personal social life, but this did not mean that they were not professional or would use foul language in court.

(e)  Post 7 was expressing a personal view, where a person did not have to be neutral on Facebook platform where views were expressed, whether agreed by readers or not. Not being neutral was not a factor to be criticised.

(f)  The Assisting Officer’s use of “sarcastic” to describe statements in many of the Facebook Posts does not mean that the speaker really wished the whole family of the police officer to die. Sarcasm meant that one could not interpret arbitrarily the real meaning of the eight Facebook Posts, and it is unreasonable to say that one statement has an opposite meaning. Post 8 should not be interpreted as identifying the Applicant as agreeing with bullying, and there was no evidence that she harboured bullying or isolation of students.

(9)  If the Applicant were to be found guilty of misconduct, it would violate her constitutional right to freedom of expression guaranteed by BL 27 and BOR 16 and/or the right to privacy guaranteed by BOR 14.

(10)  To constitute misconduct outside the education setting, the conduct must have affected the way the person fulfils his or her teaching role. There was no evidence that the views expressed by the Applicant in the Facebook Posts in any way affected her teaching work.

(11)  Hence, the Inquiry Committee was invited to find that the alleged misconduct was not substantiated.

50.  The Legal Adviser to the Inquiry Committee then offered legal advice regarding applicable principles, as was recorded in summary in the Report.

51.  The Report then identifies the findings of the Inquiry Committee. It noted that the allegation against the Applicant was serious, and the more serious the allegation, the more cogent the evidence required should be to overcome the unlikelihood of what is alleged and thus to prove it. This was the standard of proof applied. Doing so, the Inquiry Committee found that the Facebook account belonged to the Applicant, and she used it to share the Facebook Posts with friends. Further, it was highly likely that the Facebook Posts were posted by the Applicant within the period specified in the charge.

52.  As to the interpretation of the Facebook Posts:

(1)  To understand the meaning of the messages, it is necessary to have regard to the social unrest when the messages were posted. The Facebook Post should therefore be read as a whole against the background of social turmoil.

(2)  With the exception of Post 7, which was in response to a post containing a photograph of the then Chief Executive, all of the other seven Posts were directed at the police, using a indecent logo and words which an ordinary Hong Kong citizen would understand as foul language, hate speech, insults and curses.

(3)  Regarding the term “CLS” in Post 2, Mr Wong’s submission was noted, but reading the whole message objectively stood for (in translation) “fucking crazy”, so that the message was “Fucking crazy!!! Is this how law enforcement is done?”. Whatever it stood for, the Applicant’s response was (in translation) “Scum, utterly without conscience! Please widely share/spread let more people see this”.

(4)  The defence of foul language in Posts 4, 5 and 6 would be rejected. The example given by Mr Wong takes the use of foul language out of the context of the messages which are full of enmity towards the police force.

(5)  The messages in question so worded, not only unbefitting of a teacher, would only serve to provoke violence and hostility in society which was in turbulence when the messages were posted or disseminated.

53.  The Inquiry Committee found that the Code, EDBIC 1/2010 and EDBIC 4/2016 were not only applicable to misconduct in the execution of teaching duties within the school setting. Rather, whether at school or in their private life, teachers are required to uphold the professional conduct of education. The Applicant’s conduct and behaviour did not live up to those requirements and expectations.

54.  As to the 13 June 2019 ‘Reminder to Teachers’, the Inquiry Committee found that the version used in the staff meeting was the revised shorter version which advised teachers to be politically neutral not only in their communications with students, but also on social media platforms. Part of the point was to avoid opinions expressed on social media platforms from being exploited. The Applicant did not follow the relevant instructions.

55.  As to the argument that the Applicant neither intended nor caused the dissemination of the Facebook Posts, and her being a victim of doxxing, the Inquiry Committee found that disseminating eight highly improper messages to some 380 Facebook users, inciting hatred towards the police force among a community of some 380 people in such language unbefitting of a teacher at a time of social unrest would subject her to the same disciplinary proceedings if this came to the knowledge of the disciplinary authority. In addition to the improper Post 2, which requested wider dissemination, there were two other posts (albeit not part of the Facebook Posts the subject of the charge) where the intention to disseminate is obvious. How the misconduct came to light is irrelevant in the consideration of whether the charges substantiated.

56.  The Inquiry Committee specifically noted that it is common knowledge and practice that Facebook Post can be and are often captured and re-posted and again re-posted. It found that in the present case, the evidence showed that the Facebook Posts were known to the public and reported in the press, which students might read. The posting of the Facebook Posts was unbefitting of a teacher and brought the Government service into disrepute.

57.  The Inquiry Committee also addressed the legal context by reference to various case authorities cited to it. As to the submission that misbehaviour must attain a certain level of gravity before it can qualify as professional misconduct, it was found that the Applicant’s posting of the highly improper messages with indecent logo, insulting, cursing and foul language on a social media account on Facebook during the period specified in the charge when there were social unrest and turbulence, disregarding the school’s briefing on 13 June 2019 to teachers to be politically neutral, and giving rise to complaints from the public, was a serious and blatant breach of the Code. The acts of misconduct could not be trivial or inconsequential and therefore were a kind of professional misconduct.

58.  Further, the Inquiry Committee held this was a case far removed from a case of a private citizen expressing views within the limits of the law, including in particular on controversial matters of public interest. The Facebook Posts were not the kind of “views” envisaged by the court in the relevant cases.

59.  The Inquiry Committee’s conclusion paragraphs read as follows:

12.1 It is trite that the right to freedom of expression is neither without limit nor absolute. The authorities cited at the hearing show the same. The claim to the right to privacy is irrelevant as there was a readership of some 380 people for Ms Tam’s Facebook posts, in three of which the Facebook users were asked to disseminate.

12.2 From the findings above, the Inquiry Committee finds that Ms Tam’s conduct has fallen short of the standards expected of a teacher and has brought the Government into disrepute, and that she has misconducted herself as particularised in the statement of alleged misconduct

60.  As already stated, the Report was dated 28 October 2022.

E.  The Further Representations

61.  By letter dated 31 October 2022, the Applicant was sent a copy of the Report. She was invited to submit representations as to whether the disciplinary authority should accept the findings of the Inquiry Committee and also representations in mitigation of punishment, for inclusion in the invitation from the Secretariat on Civil Service Discipline (“SCSD”) to the disciplinary authority to consider accepting those findings.

62.  Under cover of her solicitors’ letter dated 28 November 2022, the Applicant provided her representations in the form of a document drafted and signed by Mr Wong. It was submitted that the disciplinary authority should not accept the finding of the Inquiry Committee that the Applicant was guilty of misconduct, and that the Inquiry Committee failed to deal adequately with the written and oral submissions made on her behalf and/or to give adequate reasons to support the finding of guilt. As to mitigation, the Applicant made seven points, being: (1) she had a clear disciplinary record; (2) the Facebook Posts were made outside the education setting, with no evidence that they affected the way the Applicant fulfilled her teaching role or the execution of her professional duties; (3) she was a victim of doxxing amid the social unrest at the time, when the Facebook Posts were only disseminated to the public by unknown persons without her consent: (4) she submitted a personal letter emphasising how she had cared for students, including privately and discreetly helping them materially or financially; (5) she submitted eight mitigation letters demonstrating her positive character and contributions; (6) she continued to suffer from depression as a result of the case, evidenced by a Psychiatric Report; and (7) the appropriate punishment should take into account the right to freedom of expression and the right to privacy, and any punishment imposed should not be so heavy as to constitute a disproportionate interference with those fundamental rights.

63.  By memorandum dated 6 January 2023, the EDB recommended to the SCSD that the Applicant should be punished by dismissal to reflect the gravity of the case and the management’s serious view on her misconduct. The views expressed included that: (1) the misconduct was very serious in that the Facebook Messages carried abusive, obscene and ruggedly content and sought to spread hatred towards the police or strong resentment against the Government; (2) the language used was most unbefitting for a teacher; (3) the Applicant had demonstrated a lack of professionalism for a person vested with the responsibility of nurturing students with the concepts of peace and rationality as required in the Code; (4) the language used, directed as it was, was particularly unacceptable at a time when the Government was making strenuous effort to restore peace and order; (5) the Facebook Post were not isolated or unpremeditated or purely out of impulse, and reflected a poor sense of judgment in the use of Facebook, and the Applicant should be well aware of the risk of her posts being easily disseminated to persons outside her group of “friends”; (6) the Applicant was evasive in the departmental investigation and Inquiry Hearing, reflecting badly on her honesty and integrity; (7) the Applicant was not remorseful, and had pleaded not guilty to the charge; (8) the Inquiry Hearing proceeded in a way which allowed evidence and cross-examination on both sides, and the Inquiry Committee’s findings are supported by evidence; (9) the arguments as to the right to freedom of expression and right to privacy had been taken into account by the Inquiry Committee; and (10) dismissal would be appropriate as being at the commensurate level of punishment.

64.  On 13 January 2023, the SCSD issued a memorandum to the Public Service Commission (“PSC”) seeking its advice. On 20 March 2023, the PSC advised that the recommended punishment for misconduct being dismissal was appropriate.

65.  By letter dated 22 March 2023, the SCSD informed the Applicant of the proposed punishment of dismissal, and invited further and final representations on mitigation. It included an extract of the impending submission to the Secretary, setting out the considerations of punishment and the advice of the PSC. The documents included reference to the EDB recommendation and the SCSD’s own views.

66.  By letter dated 14 April 2023, the Applicant’s solicitors submitted further representations. It was stated that the Applicant fully adopted the written and oral submissions presented to the Inquiry Committee as well as the prior representations dated 28 November 2022. The further points of mitigation also advanced were: (1) the Applicant had provided generous financial support to those who are in need, had no savings and relied heavily on the income and benefits as a civil servant. If dismissed with all claims to retirement benefits forfeited, it would be extremely difficult for her to live her life as she may not be able to secure another job given her age, deteriorating health, and limited education level; (2), the clear disciplinary record and long-term contribution to the civil service should be considered favourably, and it was now more than three years since the Facebook Post had been disseminated to the public by unknown persons without her consent, during which period the Applicant had abided by all instructions given and arrangements directed by the authorities as part of the disciplinary action; (3) the Psychiatric Report previously provided evidenced that the Applicant continued to suffer from depression as a result of the present case, which points to the exercise of leniency in imposing punishment; (4) the precedent cases relied on by the EDB were distinguishable, in particular Case 2; and (5) in December 2022, the EDB issued the Guidelines on Teachers’ Professional Conduct (“Guidelines”) which pointed to the fact that any punishment imposed should not be so heavy as dismissal with all retirement benefits forfeited.

67.  The letter specifically quoted from the Guidelines giving an example of punishment for improper words and deeds on social media platforms which bore resemblance to the Applicant’s case: see Case 6 in Appendix 5 to the Guidelines. That Case 6 – headed ‘Improper words and deeds on social media platforms’ – stated:

A teacher posted a lot of vulgar language and comments which insulted other people on social media platforms. Although the teacher’s social media platforms were defaulted to be shared among friends only, the posts concerned were leaked to outsiders including parents and students.

In this case, the teacher’s behaviour of using vulgar language and expressing hatred or insulting others seriously undermined at the image of the profession as well as the confidence of parents and the public in teachers. The EDB issued a reprimand letter to the teacher.

68.  The letter also noted that the Guidelines at Appendix 4 stated that for “very serious cases” EDB will issue reprimand letters, and it is only for “extremely serious cases” that the EDB will cancel the teacher’s registration.

69.  By further letter dated 18 May 2023, the Applicant’s solicitors enclosed an updated Psychiatric Report dated 5 May 2023. The letter emphasised that the latest Psychiatric Report noted the Applicant to be “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”. A more lenient punishment was invited.

70.  On 12 June 2023, the SCSD informed the Applicant that the punishment of dismissal would be recommended to the Secretary, and a revised extract of the SCSD’s impending submission to the Secretary (incorporating the Applicant’s further representations, the Psychiatric Report, and the EDB’s review and recommendation) was provided. The Applicant was invited to make any further and final representations (i.e. the last word) in mitigation of punishment. In the revised extract, it included that the EDB considered that it was not appropriate to make simple and direct comparisons of different cases, nor to take them as precedents, as the follow-up action taken by EDB and the penalties imposed on teachers involved might vary given the uniqueness of each case. Further, the EDB noted that the teacher registration mechanism under the Education Ordinance Cap 279 should not be confused with the civil service disciplinary mechanisms, and the two mechanisms could not be directly compared.

71.  By letter dated 26 June 2023, the Applicant’s solicitors submitted her final representations, inviting a more lenient punishment. Amongst the further points made in mitigation were that: (1) the fact that the Applicant was herself a victim of doxxing was part of the crucial context, such that the number of complaints should not be given any great weight in considering her culpability – the evidence even confirms duplicated complaints made by the same persons, and there are no statistics available on whether the contents of the complaints were substantial or repetitive, whether they were from persons actually aggrieved or opposed to the social media posts; (2) the wider coverage by press reports or other dissemination was done against the Applicant’s will, and a matter over which she had no control, and which in fact traumatised her; (3) against the suggestion that she was evasive and not remorseful, the Applicant had in fact been very cooperative with all the authorities throughout the investigation and subsequent disciplinary proceedings; (4) the fact that the Applicant took the School’s recommendation and deleted her Facebook account as an immediate response, thereby cutting off her entire social media presence, demonstrated her responsiveness and eagerness to address the allegations; (5) the Applicant’s mental health had deteriorated upon knowing that the dismissal decision against her was being maintained; (6) the Applicant was 54, and would reach normal retirement age as a civil servant in around just four years, such that in view of all the mitigating factors submitted the punishment of compulsory retirement would be a more appropriate punishment than dismissal; (7) the Applicant had submitted a further personal letter dated 19 June 2023.

72.  In her personal letter, the Applicant sought amongst other things to draw a distinction between the main precedent case relied upon on by the EDB and her own position, which she said much more closely resembled Case 6 in the Guidelines. She also expressed regret, and sought sympathy, in consideration of her physical and mental state and the impact on her health caused by the incident. She also made reference to a prior case involving a senior civil servant (Deputy Commissioner of the Inland Revenue Department), who had been convicted of an offence of dishonesty, and been sentenced to 9 months in jail suspended for two years, but she was ordered to retire yet was paid her pension. As she pointed out, the Applicant was on a much lower position, and her case did not involve any financial interests or criminal imprisonment.

F.  The Dismissal Decision

73.  By an internal memorandum ‘L/M 1’ dated 3 July 2023, the Senior Principal Executive Officer (Disciplinary Secretariat) of the CSB passed consideration on determination of punishment for the Applicant up the chain of command. In light of the criticisms raised by Ground 4, it is appropriate to set out the content of that memorandum in full, as follows:

  This minute seeks your consideration and acceptance of the Inquiry Report at encl. (2) and agreement that TAM be punished by dismissal under Section 10 of PS(A)O for her established misconduct.

2. TAM was found guilty by the Inquiry Committee at the disciplinary inquiry hearing held on 4 and 6 January 2022 of her misconduct of posting highly improper messages in her social medial account on Facebook, the details of which are set out in Annex A of the Inquiry Report, which is also extracted at enc. (1).

TAM’s Representations in Mitigation of Punishment

3. On 31 October 2022, TAM was provided with a copy of the Inquiry Report and invited to submit representations as to whether the disciplinary authority should accept the finding of the Inquiry Committee and in mitigation of punishment. TAM’s legal representative submitted her representations on 28 November 2022 at encl. (3).

Recommendations on Punishment and Advice from the Public Service Commission (“PSC”)

4. Having considered and accepted the factors of consideration with regards to the gravity of TAM’s misconduct, disciplinary and service records, mitigating factors and customary level of punishment, EDB recommends punishing TAM by dismissal. The Secretariat on Civil Service Discipline supports the recommendation.

5. PSC advises that the recommended punishment for the misconduct in question is appropriate, at encl. (4).

TAM’s Further and Final Representations

6. We provided TAM on 22 March 2023 an extract of our impending submission to you on the recommended punishment, the consideration involved and PSC’s advice, and invited her to submit further and final representations in mitigation of punishment. TAM’s legal representative submitted her further representations and a Psychiatric Report showing that she is suffering from recurrent depression at encl. (6) and (7) on 14 April 2023 and 18 May 2023 respectively. After consideration of TAM’s further representations and the Psychiatric Report, EDB maintains its view that dismissal is the appropriate punishment. TAM was invited to make further and final representations (“last word”) on 12 June 2023. Her last word was received on 26 June 2023 (encl. (8)).

Approval Sought

7. TAM is a Category A officer remunerated at MPS Point 24 ($50,080). The authority to punish TAM by dismissal rests with SCS as shown in the schedule of delegation at Float.

8. The submission, setting out the particulars of the case and the consideration of the recommended punishment, is at Centre for your consideration please.

9. Subject to your acceptance of the Inquiry Report, your approval is sought to punish TAM by dismissal under section 10 of PS(A)O.

Other Issues

10. The forfeiture of TAM’s earned leave and withheld emoluments during her interdiction from 28 August 2021 will be separately handled.

74.  Hence, the enclosures to L/M 1 which were submitted to the Secretary for consideration of the Applicant’s punishment included: (1) the Charge at Annex A of the Report; (2) the Report; (3) the Applicant’s representations dated 28 November 2022; (4) the PSC’s advice on punishment dated 20 March 2023; (5) a summary of precedent cases; (6) the Applicant’s representations dated 14 April 2023; (7) the Psychiatric Report dated 5 May 2023; (8) the Applicant’s ‘last word’ representations dated 26 June 2023.

75.  Going up the chain, the D(3) noted “Supported” and signed on 3 July 2023; the PSCS merely signed (without any comment) on 4 July 2023; and the Secretary noted “I approve punishing Ms Tam by dismissal” and signed on 6 July 2023.

76.  By letter dated 10 July 2023, signed by the Permanent Secretary for the Civil Service, the Applicant was notified of the Dismissal Decision, in the following material terms (underline and bold in original):

I write to inform you that consequent to the disciplinary inquiry hearing held on four and 6 January 2022, the Secretary for the Civil Service, in exercise of the authority delegated to her by the Chief Executive, has considered the Report of the Inquiry Committee and is satisfied that you have misconducted yourself as per the charge at Annex.

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 Public Service Commission, the Secretary for the Civil Service 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 the emoluments withheld during interdiction, will be forfeited in full.

77.  Other than the Annex relating to the charge, there were no other attachments to the letter.

78.  Subsequent to receiving the Dismissal Decision, the Applicant made data access requests to the CSB and the EDB, and in response various documents were disclosed to her, including the internal memoranda between the EDB and the SCSD, and the PSC and the SCSD.

G.  Ground 1: Whether “misconduct”

79.  I will consider Ground 1 first, notwithstanding that in his oral submissions Mr Wong focused first and primarily on Ground 2. Nevertheless, I have not lost sight of the fact that the various Grounds are to an extent intertwined, so that it is necessary not to view any single Ground in a vacuum, but it may appropriately be viewed in the context of the consideration of other Grounds. For example, Mr Wong has submitted that the fundamental rights involved in Ground 2 may affect the Court’s standard of scrutiny on the other grounds, and the lack of reasons asserted in Ground 4 may affect the Court’s assessment of proportionality on Ground 2 and reasonableness on Ground 3.

80.  Ground 1 in effect seeks to raise the question of what is capable of amounting to “misconduct”.

81.  Section 10 of the PS(A)O materially provides as follows:

(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 in such manner as may be prescribed by regulations made by the Chief Executive under section 21(2).

(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.

82.  Under the definition provided in section 2 of the PS(A)O, “punishment” includes “dismissal, compulsory retirement, fine, reduction in rank, severe reprimand, reprimand, stoppage or deferment of increments and reduction in salary”, but excludes “retirement in the public interest under section 12”.

83.  The PS(A)O does not define what constitutes “misconduct” on the part of a civil servant. However, some guidance is given in the “Guide for Inquiry Offices, Inquiry Committees, Assisting Offices And Accused Officers Involved in the Disciplinary Enquiries under PS(A)O Section 9 or 10” dated September 2010 (“Guide”). Paragraphs 4 and 5 of the Guide state that:

4. There are no hard and fast rules on what constitutes misconduct. The nature and circumstances of the incident in question, the departmental management’s expectations of the conduct of its staff are some of the factors to be taken into consideration in each case.

5. In general, any act, conduct and behaviour of a civil servant which contravenes any government regulations, rules, instructions, codes or departmental practices may be regarded as misconduct. Where no specific rules or instructions are applicable in a particular case, conduct which falls short of the standard expected of a civil servant, or which is considered improper, by his supervisor or the departmental management concerned may be regarded as misconduct. The more senior civil servant is, the more is expected of him; and he cannot rely only on written rules when discharging his duties. Civil servants are expected at all times to exercise due diligence in carrying out their duties, to uphold personal integrity, and to demonstrate responsibility, a positive attitude, and a standard of performance commensurate with their rank and experience. Negligence or failure to perform duties required or normally expected of a civil servant commensurate with his rank and experience may constitute misconduct. Misconduct may not necessarily be related to a civil servant’s work or his official duties.

84.  Mr Wong has relied on the propositions to be found in Khan v Bar Standards Board [2018] EWHC 2184 (Admin) at §§31 and 36, that (1) misbehaviour must attain a certain level of gravity before it can qualify as professional misconduct, and (2) a person is not to be regarded as guilty of professional misconduct if he engages in behaviour that is trivial, or inconsequential, or a mere temporary lapse, or something that is otherwise excusable, or forgivable – where there is a high threshold, and only serious misbehaviour can qualify.

85.  In the specific context of teachers’ misconduct, Mr Wong has referred to the observation in Lone v Secretary of State for Education [2019] IRLR 523 at §27, that unacceptable professional misconduct is of a serious nature falling significantly short of the standard of behaviour expected of a teacher. Misconduct outside the education setting will come within this definition if it affects the way the person fulfils his or her teaching role, and conduct that may bring the profession into disrepute will be judged in a similar way.

86.  Mr Wong submitted what he said were the two core points, namely that (1) the Facebook Posts were made outside the education setting, and (2) the Applicant had neither intended nor caused dissemination beyond her Facebook “friends” only, and had herself been the victim of unauthorised dissemination.

87.  As to the first core point, Mr Wong submitted that the Code does not expressly state that it is applicable outside schools or outside the education setting. Further the contents of §4 of EDBIC 1/2010 and §6.2 of EDBIC 4/2016 suggest that the Code prescribed ethical standards of conduct for teachers in the execution of their professional duties. Whereas, in this case, there is no evidence that the making or dissemination of the Facebook Posts affected the way the Applicant fulfilled her teaching role or the execution of her professional duties. Indeed investigations have revealed no content relating to demeaning police officers nor foul language, nor discussion on political issues.

88.  Mr Wong submitted that, because the Facebook Posts do not qualify as “misconduct”, the Secretary must have erred in accepting the finding of the Inquiry Committee to that effect.

89.  As to the second core point, Mr Wong relied on what was in effect common ground that: (1) the evidence did not involve the Applicant’s making inappropriate speech inside the School; (2) the Facebook Posts were for “friends only”; (3) even the School staff were unable to see the Facebook Posts when they browsed the Applicant’s Facebook on 5 September 2019; (4) no students or parents were the Applicant’s Facebook friends; and (5) the Applicant had not intended the Facebook Post to be shared beyond her “friends”. But for the unauthorised dissemination, the Facebook Post would have remained private.

90.  Mr Wong also submitted that there was no finding by the Investigation Committee that there was any adverse impact on students and the teaching profession (as opposed to bringing the Government service into disrepute). But, in any event, any adverse impact was caused by the unauthorised dissemination, rather than by the Applicant herself. The consequences giving rise to concern were the result of doxxing activities against the Applicant, activities which were common amid the social unrest in Hong Kong in the latter half of 2019. In other words, the Applicant actions should be viewed as “otherwise excusable, or forgivable”.

91.  Mr Chan pointed to the fact that rule 7(2) of the PSDR specifically conferred on the Inquiry Committee the power to make such findings of fact as it may consider relevant, and to form the opinion as to whether or not the facts amount to misconduct. Mr Chan poined out that the Applicant does not say that the findings made on the evidence were not supported by the evidence. Neither does the Applicant say that the findings were illegal or unfair in the public law sense. Hence, Mr Chan submitted, Ground 1 is simply a disguised appeal and/or an invitation to the Court now to substitute its views for the views of the Inquiry Committee, which is impermissible.

92.  I agree that, as a matter of law, it is not now open to the Applicant to revisit the Facebook Posts and to re-run the arguments which she previously ran (with the benefit of the same Counsel) on arguments which she lost, where there are no public law grounds to impugn the decision. Any intended challenge to factual findings made would have to be through the gateways permissible in judicial review. It is not possible to bring in arguments relating to proportionality in the absence of a public law challenge to the Inquiry Committee’s findings.

93.  I acknowledge that it might be thought that a person’s Facebook page is inherently non-work-related, and would ordinarily be used for the expression of personal views about matters which have nothing whatsoever to do with that person’s work. But, that is not the end of the analysis, where it must be recognised that the expression of personal views outside the work context may nevertheless impact the work context, or the perception of others about persons working in that context.

94.  Further, as was pointed out in Stocker v Stocker [2020] AC 593 at §§42-44 it must be recognised that social media are conversational media, and it is normally unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (i.e. an ordinary reasonable) reader would interpret the message. The nature of the conversation is where expressions are casual and often not carefully chosen, and it is pre-eminently one in which the reader reads and passes on.

95.  In any event, the relevant Code and rules under which the Applicant served as a civil servant and teacher do not confine the duties to her teaching methods or materials. Just as the authorities relied upon by Mr Wong identify, certain conduct outside the education setting may come within the definition of misconduct, where it affects the way the person fulfils the teaching role or may bring the profession into disrepute.

96.  Reference can also be made to a case cited by Mr Wong for a different purpose, namely Vogt v Germany (1995) 21 EHHR 205. The case concerned the dismissal of a teacher from civil service on account of her political activities, though the facts of the case were very far from the facts of the present case. Nevertheless, it was recognised at §60 that because teachers are figures of authority to their pupils, their special duties and responsibilities to a certain extent also apply to their activities outside school.

97.  I would specifically note that it is not open to the Applicant to seek to assert through submissions of her Counsel in a judicial review what she might subjectively have intended by making the Facebook Posts. The opportunity to give that evidence was passed up by her in the Inquiry Hearing. Nevertheless, the Inquiry Committee had the benefit of competing arguments as to what to make of the Facebook Posts, and it was well able to have formed its own view looking objectively at the Facebook Posts with the benefit of that argument.

98.  As to the breadth of dissemination of the Facebook Posts, the Inquiry Committee formed the view that even the 380 “friends” was a sufficiently large group to weaken any claim to privacy to the point of irrelevancy, and that the Applicant must have been aware of the real possibility of greater dissemination beyond that group.

99.  In that regard, reference can be made to a case cited by Mr Wong, namely Kilin v Russia (Application No 10271/12, 11 May 2021) at §78, where it was stated (reference to authorities omitted):

The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms may be higher than that posed by the press, as “unlawful speech”, including hate speech and calls to violence, can be disseminated as never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. At the same time, the reach and thus potential impact of a statement released online with a small readership (or, as the case may be, online followership on social-media platforms) and a statement published on mainstream or highly visited webpages may differ. It may be pertinent for the assessment of the potential influence of an online publication to determine the scope of its reach to the public.

100.  Later in the same case at §91, it was stated (reference to authorities omitted):

At the time of the events on the examination, the applicant does not appear to have been a well-known or popular user of social media or a public or influential figure, which could have attracted public attention to the material and thus have enhanced its potential harmful impact. Having said this, the Court does not exclude that the sharing of such content in such a manner within an online group (even a relatively small one) of like-minded persons may have the effect of reinforcing and radicalising their ideas without being exposed to any critical discussion or different views.

101.  I also think it was fair for the Inquiry Committee to form the view that the content of the Facebook Posts was not something which rationally contributed to public debate on a matter of public interest (a point which might be relevant also to the consideration of Ground 2 below).

102.  In any event, it seems to me that it was perfectly open to the Inquiry Committee to find that misconduct had been established on the evidence placed before it, and in the light of the arguments presented to it. Similarly, there is no basis for interfering with the Secretary’s decision to accept the findings of the Inquiry Committee that the Applicant’s conduct has fallen short of the standards expected of a teacher and has brought the Government into disrepute, such that she had misconducted herself as particularised in the Statement of the Alleged Misconduct.

103.  Ground 1 is not established.

H.  Ground 2: Whether disproportionate interference with the right to freedom of expression and/or right to privacy

104.  It is fair to say that Ground 2 formed the main focus of Mr Wong’s oral submissions – where he submitted that the Court should be wary of any interference with freedom of expression which has a ‘chilling effect’ on free speech.

105.  Mr Wong advanced his submissions orally starting with six broad propositions:

(1)  Freedom of expression is both intrinsically and instrumentally important.

(2)  The concept of freedom of expression is very broad, and should be given a generous interpretation, and any restrictions must by contrast be narrowly interpreted.

(3)  The expression of views on matters of public interest is worthy of special protection.

(4)  The Court should take a context-specific approach in the proportionality analysis.

(5)  Statements which amount to hate speech or incitement to violence invoke a high threshold.

(6)  The applicable standard of scrutiny in the context of freedom of expression should be the “no more than reasonably necessary” standard.

106.  As to the first point, Mr Wong referred to the case of Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524 at §30, where the Court of Appeal accepted as a general proposition what was said in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 126F-127A (reference to authorities omitted):

Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market”. Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country. …  The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with journalists to publish pornographic material or to give vent to so-called hate speech.

107.  As to the second point, Mr Wong referred to the United Nation’s Human Rights Committee General Comment No 34 (2011), relating to freedoms of opinion and expression under Article 19. At §§11-12, it was stated:

11. Paragraph 2 requires States parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.

12. Paragraph 2 protects all forms of expression and the means of their dissemination. Such forms include spoken, written and signed language and such non-verbal expression of images and objects of art. Means of expression include books, newspapers, pamphlets, posters, banners, dress and legal submissions. They include all forms of audio-visual as well as electronic and Internet-based modes of expression.

108.  It has been recognised that General Comments are valuable jurisprudential resources, not binding on this Court, but providing some influential guidance as to how the ICCPR is applied. I approach it on that basis. Looking at the Comment, Mr Wong drew attention to the fact that freedom of expression embraces matters which may be regarded as deeply offensive, including in Internet-based modes of expression. He also drew attention to the fact that at §36 of the same Comment, it was suggested that the scope of the freedom is not to be assessed by reference to a “margin of appreciation” (see also the sixth point below).

109.  Mr Wong also relied upon what was said by the Court of Final Appeal in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 at §§36-37:

36. With respect, I do not think that is a test that could should be adopted in Hong Kong. BL 27 and BOR 16 guarantee the right to freedom of expression subject only to the specified permitted restrictions. It would not be appropriate for our courts to place hurdles in the way of a person claiming those rights where such rights are factually engaged, by requiring such person to show that the content, manner and form of the proposed expression promotes the matters identified as the underlying purposes of free expression. As indicated in the discussion which follows, rather than imposing a burden on the claimant to prove that the proposed expression qualifies for constitutional protection, the burden is rightfully placed on the government to prove that it is limitation of the guaranteed right is justified.

37. It also seems to me that an official trying to decide whether access to a venue should be granted or denied full find it hard to know beforehand whether the intended demonstration will meet the somewhat amorphous criteria articulated. Moreover, the criteria themselves appear debatable. It is well established that, subject to permissible limitations, freedom of expression extends to views which may be “disagreeable, unpopular, distasteful or even offensive to others”. It is unclear whether the suggested criteria accommodate the expression of such views.

110.  With those sentences in mind, Mr Wong submitted that the approach adopted by the Secretary in this case was exactly contrary to the principle laid down, because it was said that the Facebook Posts did not contribute to public debate on matters of public interest.

111.  Mr Wong described Savva Terentyev v Russia (Application No 10692/09, 28 August 2018) as the most instructive authority for the purposes of the present case. In the context of his second broad point, he referred to §68, where the Court reiterated that offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration, but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the substance of the ideas and information expressed.

112.  As to the third point, Mr Wong referred to the Savva Terentyev case at §62, where it was held that there is little scope for restrictions on political speech or on debate on questions of public interest. The Court pointed out that its consistent approach had been to require very strong reasons for justifying restrictions on such debate, for broad restrictions imposed on individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned. This was in the context of what was “necessary in a democratic society”, where the word “necessary” implies the existence of a pressing social need which must be convincingly established.

113.  I think it helpful also to quote §§64-66 (omitting references to authority):

64. The Court’s supervisory function is not limited to ascertaining whether the national authorities exercised their discretion reasonably, carefully and in good faith. It has rather to examine the interference in the light of the case as a whole and to determine whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” and whether the measure taken was “proportionate” to the legitimate aim pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 of the Convention.

65. With regard, more specifically, to the interference with the freedom of expression in cases concerning expressions alleged to stir up or justify violence, hatred or intolerance, the Court reiterates that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify violence or hatred based on intolerance provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued. It certainly remains open to the relevant State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks. Moreover, where such remarks incite violence against an individual, a public official or a sector of the population, the State enjoys a wider margin of appreciation when examining the need for an interference with freedom of expression.

66. In its assessment of the interference with freedom of expression in cases concerning the expressions mentioned in the previous paragraph, the Court takes into account a number of factors, which have been summarised in the case of Perinçek (cited above, §§205-07). It is the interplay between the various factors rather than any of them taken in isolation that determines the outcome of a particular case (ibid, §208). The court will thus examine the case at hand in the light of those principles, with a particular regard to the nature and wording of the impugned statements, the context in which they were published, their potential to lead to harmful consequences and the reasons adduced by the Russian courts to justify the interference in question.

114.  Reference can also be made to R (on the application of Miller) v The College of Policing [2021] EWCA Civ 1926 at §§68, 69 and 73.

115.  Therefore, drawing some of the strings together, it seems to me that it can be seen that:

(1)  The concept of a ‘chilling effect’ in the context of freedom of expression is an extremely important one.

(2)  It arises not just when considering journalistic activity, but also when considering the rights of private citizens to express their views within the limits of the law, including on controversial matters of public interest.

(3)  Special protection can be afforded to political speech and debate on questions of public interest, and there is therefore little scope for restrictions in that regard.

(4)  In exercising its supervisory function, the Court examines the interference in the light of the case as a whole.

(5)  The task is to determine whether the interference is justified by relevant and sufficient reasons, so that the measure taken can be seen to be proportionate to the legitimate aim pursued.

(6)  In its assessment of interference with freedom of expression, the Court takes into account a number of factors.

(7)  It is unlikely that any single factor will be determinative, and the Court must assess the interplay amongst the factors as a whole.

(8)  Particular regard will be had to (a) the nature and wording of the impugned statements, (b) the context, including the social and political context, against which they were made or published, (c) whether the statements, fairly construed and seen in their immediate or wider context, can be seen as a direct or indirect call to violence or as a justification of violence, hatred or intolerance, (d) their potential or capacity to lead to harmful consequences, and (e) the reasons adduced to justify the interference in question.

(9)  Whilst the intention of the maker of the statement may be relevant, the existence of intent may not always be easy to demonstrate, particularly where remarks are ostensibly concerned with supposed facts or coded language is being used.

(10)  Interference with freedom of expression alleged to stir up or justify violence, hatred or intolerance, requires the Court to bring into account the facts that tolerance and respect for the equal dignity of all human beings constitute the foundations of the democratic and pluralistic society.

(11)  In other words, there may be different or even competing rights which require some consideration and balancing.

(12)  Democratic societies may properly consider it necessary to sanction or even prevent all forms of expression which spread, incite, promote or justify violence or hatred based on intolerance.

(13)  But they may only do so where any formalities, conditions, restrictions or penalties imposed are proportionate to the legitimate aim pursued.

(14)  The prevention of the expression of views, whether thought legitimate or not, in such offensive language as might well damage confidence in the target of the expression, can fall within the legitimate aim of the system of some restrictions.

(15)  But legitimate aims must have limits and cannot extend too far, and could not extend so far as to preclude legitimate expression of views simply because many might disagree with them.

(16)  However, a wider margin of appreciation will be given to the imposition of restrictions where the remarks incite violence against an individual, a public official or a sector of the population.

116.  As to Mr Wong’s fourth point, I have already accepted above that the Court should take a context-specific approach in the proportionality analysis. There can be little doubt in this case that the Inquiry Committee, and subsequently the Secretary, were very conscious of the relevant context, as is this Court. I also accept that when anxiously scrutinising matters, the Court will be less inclined to accept ex post facto justifications from the decision-maker, compared to a traditional unreasonableness review: see, for example, MA v Director of Immigration (unreported, HCAL 10/2010, 6 January 2011) at §120.

117.  As to the fifth point, it may well be correct that an expression has to cross a high threshold if it is to be seen to amount really to hate speech or an incitement to violence. But concrete expressions constituting hate speech are not protected. There is, of course a distinction of sorts between hate speech and incitement of violence. As regards incitement, the Savva Teretyev case used the concept of ‘clear and imminent danger of violence’ resulting from the expression, when considering if the statement in that case could be considered to be incitement. That phrase was taken from a Report of the Special Rapporteur quoted at §34.

118.  As an aside, it can be noted that the same quote included a reference to the obvious fact that a statement released by an individual to a small restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website. On the other hand, it was recognised in the Savva Terentyev case at §78 that the relevant comments being assessed in that case were not published against a sensitive social or political background, or where the general security situation was tense, or where there were any clashes, disturbances, or anti-police rights, or where there existed an atmosphere of hostility and hatred towards the police. As already noted, that is very different from the prevailing situation or context at the time of the Applicant’s making the Facebook Posts.

119.  As to the sixth point, Mr Wong relied on Cheung Tak Wing v Director of Administration [2020] 1 HKLRD 906 at §§ 95-100, where – in a case assessing proportionality of the restriction on freedom of expression and demonstration at the forecourt of government offices – the Court of Appeal held that the applicable standard of scrutiny was that of “no more than reasonably necessary” in the proportionality analysis. It did so on the basis that, armed with proper relevant information provided to assist with conducting the necessary assessment, the Court was not so institutionally disadvantaged that the less stringent test of “manifestly without reasonable foundation” standard should be adopted.

120.  Mr Wong also referred to Tagiyev v Azerbaijan (2020) 71 EHRR 15 at § 37, where in the context of restrictions on political speech or on debates on questions of public interest (so that the application of Article 10(2) of the Convention was readily applicable), the margin of appreciation of states is reduced.

121.  But, as touched on above, and as Mr Chan submitted, expressions that promote or justify violence, hatred, or other forms of intolerance will not ordinarily be able to claim protection. The Court is sensitive towards sweeping statements attacking or casting a negative light on an entire group – in particular where the statements are made against a tense political or social background. Indeed, the presence of such a background has generally led to acceptance that some form of interference with such statements is justified: see, for example, Perinçek v Switzerland (2016) 63 EHRR 6 at §§ 205-208.

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.

124.  In the evidence for the Secretary, three legitimate aims were identified, being (1) upholding the core values, principles and the integrity of the civil service (including impartiality and political neutrality), (2) maintaining the public’s trust and confidence in teachers as well as the 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.

125.  The Applicant did not significantly dispute that the first and second steps of the proportionality analysis are met. I accept that they are, indeed, met. The main challenge was to the third step of the analysis. But it is to be remembered that the very assessment of proportionality engages, or may engage, an assessment of the impact on other persons’ rights which are also engaged.

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).

129.  I find that the Dismissal Decision passes the third step of the proportionality analysis. As such, it is unlikely to fail at the fourth step. 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.

130.  The proportionality challenge fails. Ground 2 is not established.

I.  Ground 3: Whether Dismissal Decision is oppressive

131.  For Ground 3, Mr Wong relied on the principle that there is a category of unreasonable decisions being those which are unduly oppressive because they subject the complainant to an excessive hardship or an unnecessarily onerous infringement of his rights or interests.

132.  The focus of attention should principally be on the impact of the decision upon the affected person. Hence, it is the end-product or outcome of the decision-making process which is to be assessed, rather than the way the decision was reached.

133.  This is the logical distinction between Ground 2 and Ground 3, and I do not think Mr Chan is correct when he suggested that Ground 3 is a re-run of Ground 2 but couched in common law irrationality, where it would be odd if the common law route would provide better protection or reach a result different from the proportionality route. As Mr Wong submitted, there is indeed a degree of overlap between this Ground 3 and the previous two Grounds 1 and 2, but the difference is that the focus is not on proportionality but whether the overall impact of the decision is oppressive.

134.  Put another way, Ground 2 is concerned with the proportionality of punishment imposed against the interference with the right to freedom of expression, whereas Ground 3 is concerned with the overall reasonableness or rationality of the punishment against the particular misconduct being punished.

135.  In other words, the question to be addressed is whether the Dismissal Decision is so disproportionate to the misconduct in question as to be perverse, or so unduly oppressive as to be unreasonable or irrational in the public law sense.

136.  On the other hand, Mr Chan is obviously correct when he submitted that the Court will rarely disturb on irrationality grounds the sanction decided by professional disciplinary bodies. Ordinarily, professional disciplinary bodies are familiar with the whole gradation of seriousness of cases, and are particularly well qualified to say at what point on the scale the punishment becomes the appropriate sentence. Therefore, I accept that, for the Court to interfere, it is insufficient that the sentence is severe or even unduly severe or surprisingly severe. It has to be so harsh and oppressive or so far outside the normal discretionary limits as to enable the Court to say that its imposition must have involved an error of law of some description, even if it may not be apparent at once what is the precise nature of that error.

137.  Mr Wong submitted that test is satisfied in the circumstances because:

(1)  The Applicant had a clear disciplinary record. This was the first time the Applicant was subject to disciplinary proceedings since she joined the civil service in 1995.

(2)  The Facebook Posts were made outside the education setting, which would not ordinarily affect the way the Applicant fulfilled her teaching role. Indeed, there is no evidence that the posting or dissemination of the Facebook Posts affected the way the Applicant fulfilled her teaching role or the execution of her professional duties.

(3)  The Applicant was herself a victim of doxxing amid the social unrest in Hong Kong in the latter half of 2019. This has traumatised her.

(4)  The hacking or breach of her personal Facebook account was the only reason why the Facebook Posts had come into the public domain.

(5)  The Applicant neither intended nor caused the dissemination of the Facebook Posts.

(6)  The precedent cases relied upon by the EDB are distinguishable from the Applicant’s case. This is particularly so, when it is recognised that: (a) there is no evidence that the posting or dissemination of the Facebook Posts had affected the way the Applicant fulfilled her teaching role of the execution of her duties; (b) there is no evidence or allegation that the Applicant had disseminated any improper messages in her teaching role or the execution of her duties; and (c) there was no finding by the Inquiry Committee of any actual adverse impact on students and the teaching profession.

(7)  The Case 6 example in the Guidelines (as to which, see above) strongly suggested that the punishment of dismissal was disproportionate and inappropriate.

(8)  The Dismissal Decision has deprived the Applicant of all retirement benefits built up and accrued after 27 years of hard work, which has a crushing effect on the remainder of her life.

(9)  Lastly, the right to freedom of expression and right to privacy should also be taken into account.

138.  In response, Mr Chan submitted that the Secretary had considered all relevant factors, including the various rounds of representations and the Psychiatric Report, such that the Dismissal Decision fell within her discretionary limits and was hence not irrational. He submitted that:

(1)  All of the matters emphasised by the Applicant had been put forward before, and had been duly considered.

(2)  The reliance on the examples in the Guidelines overlooks that the civil service disciplinary regime is distinct from the teacher registration regime.

(3)  In any event, the Court only interferes where it is shown by reference to earlier penalties that the present penalty is irrational.

(4)  It is not a fruitful exercise to compare disciplinary decisions rendered under vastly different circumstances.

139.  I confess to anxiously wrestling with this Ground. I am fully cognisant of the applicable principles I have set out above. But, for example, I am troubled by a statement made by the deponent on behalf of the Secretary in the evidence filed for these proceedings, where it was stated that:

Having considered the gravity of the Applicant’s established misconduct and all other relevant circumstances of the case, the [Secretary] has come to the view that the only appropriate punishment in this case was a decision of dismissal without benefits. Any less severe punishment was insufficient to serve the above-mentioned legitimate aims.

140.  It might be asked why this was the “only” appropriate punishment, when – even considering the three identified legitimate aims (see above) – at least compulsory retirement (without loss of retirement benefits) might seem to be within the bracket of appropriate punishments. Compulsory retirement is, after all, specifically referenced in section 10 of the PS(A)O, under which procedure the Inquiry Hearing and consideration of penalty was triggered in this case. But some explanation is offered in the evidence where it is reiterated that:

(1)  Great importance is attached to the conduct and integrity of teachers in the civil service, as reflected in the Code and the various circulars.

(2)  The Government takes a zero-tolerance approach towards the improper professional conduct of Government school teachers, in particular where obscenity and indecency are involved.

(3)  The public has very high expectations of teachers as they are responsible for nurturing the future pillars of society, and have high expectations of civil servants who are the backbone of the Government and by definition servants of the public. Freedom of expression/speech is not absolute and the exercise of such freedom carries with it special duties and responsibilities bearing in mind the Applicant’s dual role as a teacher and civil servant.

(4)  In civil service disciplinary proceedings, punishment of a level commensurate with the gravity of the misconduct should be imposed to achieve the desired deterrent effect. In considering the appropriate level of punishment for established misconduct, the nature and gravity of the misconduct is the main determining factor, with any mitigating factors as well as any other relevant circumstances, also being taken into account.

(5)  The gravity of the Applicant’s established misconduct in the present case was very serious (as explained by reference to salient features set out in the evidence).

141.  I acknowledge those points, though many of them go perhaps to the question whether there was misconduct, or how the penalty should be considered, rather than the appropriate penalty for the actual misconduct in this case. The points might show why the view was taken that the Applicant had to go. But the points do not seem necessarily to identify why she had to go, stripped of all benefits. In any event, I also think there is at least significant room to question whether real and significant weight has been actually given to at least the following factors:

(1)  The 25 years or so of unblemished conduct prior to the instance(s) of misconduct leading to the punishment.

(2)  Therefore, the fact that dismissal without retirement benefits would remove significant benefits built up over a significant period of time where there was no criticism of the Applicant’s conduct. This is rather different from dismissal of a civil servant who has served for a rather shorter period, who still has time to find new employment and seek to rebuild a retirement fund.

(3)  The practical reality that at her age it may be difficult or even impossible for the Applicant to find new employment, let alone employment which enables rebuilding of any part of a retirement fund.

(4)  The period of 3 years or so between the events constituting misconduct and the ultimate imposing of a punishment for it, during which period there was no further criticism of her conduct, but when the ongoing matter weighed heavily upon her to the detriment of her health.

(5)  The fact that the need for deterrence against the particular misconduct in 2019 or 2020 was likely significantly reduced in the changed civil and societal circumstances prevailing in late 2022 and 2023, and by the time the punishment was eventually imposed.

(6)  The absence of any findings that (a) the Applicant’s in-school teaching and other professional duties, or (b) any student, were actually adversely affected by the Facebook Posts.

(7)  The enormous disparity between the way in which the Applicant was dealt with and the earlier case involving the Deputy Commissioner of Inland Revenue (where an extremely senior civil servant was convicted and given a custodial sentence for an offence of dishonesty against the Government itself, but was more leniently treated). This disparity is obviously not explicable by a suggestion of different times.

(8)  Why “only” dismissal without benefits – as opposed to compulsory retirement, the other possible punishment raised by section 10 of the PS(A)O – was appropriate as the punishment.

142.  On that latter point, relevant perhaps also to Ground 4 below, a problem potentially arose from the fact that it seems that the starting point of the consideration of punishment was dismissal without benefits, rather than there having been a consideration of the potential range of punishment ending with the decision of dismissal without benefits.

143.  I am conscious that matters of weight to be given to individual factors are predominantly within the province of the Secretary as the decision-maker in this case. Nevertheless, stepping back – albeit not without some hesitation in light of the applicable principles – I am satisfied that the punishment of dismissal without benefits is so harsh and oppressive in the overall circumstances that its imposition must have involved some error of law.

144.  Ground 3 is established.

J.  Ground 4: Whether failure to give any or any adequate reasons

145.  Mr Wong submitted that the Dismissal Decision is tainted with procedural impropriety, in that the Secretary failed to give any or any adequate reasons for accepting the finding by the Inquiry Committee that the Applicant had misconducted herself as per the charge in the Statement of Alleged Misconduct, and/or directing that the Applicant be punished by dismissal under section 10 of the PS(A)O.

146.  As will be seen below, I readily reject the first part of that criticism, but the second part of the criticism is perhaps stronger.

147.  Further, if it is intended to be suggested that the Secretary did not herself make an independent decision, I reject that suggestion. The Secretary is entitled to be advised by those who served her, but she had various materials before her and it was for her to determine the relevant question. If the dates of signature on memorandum L/M 1 are of any assistance, they at least show that the Secretary did not make her decision on the same day as the recommendations from below.

148.  As to the applicable principles, I accept the propositions that (1) there is no general duty to give reasons for administrative decisions, unless the nature or circumstances of an adjudication might indicate a necessity to do so, and (2) the Secretary does not, as a matter of course, have to give reasons.

149.  It is well-settled that the requirement for reasons is based on fairness, so that the person adversely affected by a decision should have an adequate indication of the reasoning process, and where clarity and sufficiency of reasons also enable a supervisory Court in judicial review better to assess the legality of the decision under challenge. Courts are entitled to expect the answer to be sufficiently clear from the evidence, without having to resort to guesswork. But reasoning must be examined with reality and contextual common sense.

150.  I hope I will be forgiven for adopting my own summary of principles which I gave in Wong Chau Ming v Secretary for Civil Service [2023 HKCFI 2468 at §80, as follows:

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons.

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case.

(3)  The Court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing.

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.

(5)  The reasons should show that the issues that arise for serious consideration have been considered.

(6)  But the reasons in any given case may not require great elaboration, and they may be brief.

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review.

(8)  The giving of reasons in any individual case must be viewed in the context of that case.

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles.

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons.

(11)  A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision.

151.  At §82, I also pointed out that a focus on the minutiae can give rise to an inherent risk of losing the wood for the trees. What must be remembered in cases of this kind, which look to administrative not judicial processes, is that unfairness, procedural or substantive, must be found to constitute an abuse of power. The unfairness must be conspicuous in some way. Technical omissions, minor slips, inconsequential delays or errors of form that have no consequence do not, unless they in totality can be seen to have destroyed the integrity of the entire process, go to prove that administrative process is rendered unlawful.

152.  There is some force in Mr Wong’s submission that it remains unclear whether it is the Secretary’s position that she gave reasons, or that she did not because she did not need to. My own view is that, where what was proposed was the harshest possible punishment with its inherent characteristics, it was incumbent for the Secretary to have provided sufficient or adequate reasons to enable the Applicant to understand why that punishment – and, for example, not a relevant potentially different punishment – was being imposed. The question remains whether the Secretary’s reasoning was adequately clear to the Applicant.

153.  For this case, Mr Chan submitted that the letter containing the Dismissal Decision (see above) must be read against the preceding lengthy exchange of correspondence with the Applicant. He submitted that, against that backdrop, the Applicant could not be left in any doubt as to the reason for the Dismissal Decision.

154.  I accept that that is clearly correct insofar as the decision to accept the finding of misconduct was concerned. Against the backdrop of the detailed correspondence exchanged with the Applicant’s legal representatives, and with the benefit of the Inquiry Hearing conducted by the Inquiry Committee and its Report, the Applicant could not be left in any doubt as to the reason for the finding of misconduct and why it was accepted by the Secretary.

155.  The position as to the decision on the appropriate punishment for that misconduct seems to me to be less clear. Rather, there is some force in Mr Wong’s submission that the Applicant would not know from the correspondence and exchange of materials an adequately full reasoning for reaching the Dismissal Decision. He said that the Secretary identified what she had considered, but not how she considered it, particularly in relation to the mitigation representations made on behalf of the Applicant, and further did not identify the reasons why the Dismissal Decision (as opposed to a less severe punishment, such as compulsory retirement) was made notwithstanding those representations.

156.  The explanation of the Secretary’s approach is perhaps to be found in the evidence filed on her behalf, to which I have made reference above. It was stated there that, in considering the appropriate level of punishment for the established misconduct, the nature and gravity of the misconduct is the main determining factor, with any mitigating factors, as well as any other relevant circumstances, also being taken into account. That statement places main focus on the gravity of misconduct. The materials generated in this case certainly demonstrate that focus. What the materials do not seem to demonstrate is any real focus on the mitigating factors advanced, or other relevant factors, and the weighing of or reaction to them.

157.  It is obviously correct that mitigating factors must be taken into account, and dealt with by an appropriate assessment of them. But that requirement does not seem to me to be easily satisfied by merely stating that they have been taken into account. At least, merely stating that they have been taken into account does not identify the reasons for accepting or dismissing them or giving them any particular weight in the overall decision-making process.

158.  Another part of the explanation of the Secretary’s approach is that the focus was always on the recommended punishment of dismissal. From the ‘get-go’, that was the “only” punishment apparently in mind, and there seems to have been no other active consideration of any alternative form of punishment – at least not one taking into account both the nature and gravity of the offence but also the mitigating factors put forward, which factors to an extent focus on the impact of the punishment decision on the Applicant herself.

159.  I see the argument that if the Applicant understands the reasons why it was decided to punish with dismissal without benefits, then she must by way of inference understand why it was decided not to punish with a more lenient punishment such as compulsory retirement. But I am not sure that is correct, if there is no clear identification of the options and why one option is chosen over another.

160.  In any event, in light of my finding on Ground 3, ultimately I do not think I need to go further on this Ground 4, save to comment that it would have been preferable to have seen in any of the documents a real consideration of the points put forward in mitigation. If one reason for the giving of reasons is to see that important points and arguments made have actually been grappled with, I question whether that is clear here.

K.  Result

161.  The result of my finding on Ground 3 is that I order the Dismissal Decision to be brought up and quashed.

162.  I have granted the substantive relief sought, and am minded to award the Applicant her costs. But, in light of the mixed decisions on the individual Grounds, I reserve the question of costs to further argument, which I will deal with on paper.