WONG CHAU MING v. SECRETARY FOR CIVIL SERVICE

HCAL 1626/2021

[2023] HKCFI 2468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1626 OF 2021

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J U D G M E N T

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A. Introduction

1.  A deadline sets a time limit within which a specified act should be performed. The deadline is not ordinarily extended merely because the person under the limit of time asks a question as to whether the specified act need really be performed at all. The Applicant has suggested otherwise.

2.  In this case, and like most of his civil servant colleagues, the Applicant was set a deadline within which limit of time he was required to provide a particular declaration. There can be no doubt that he did not meet that deadline. Instead, he raised certain questions. He did not specifically ask for, and he was not granted, any extension of time within which to provide the declaration.

3.  The question which arises in this case is whether there was any public law error in a decision which regarded the Applicant as having failed to identify a reasonable excuse or explanation for not having complied with requirement within the deadline, and which then imposed the predicted consequences for that failure.

4.  That decision (“Decision”) was made by the Secretary for the Civil Service (“SCS”), who on 30 August 2021 directed that the Applicant should retire in the public interest, under section 12 of the Public Service (Administration) Order (“PS(A)O”).

5.  By his Form 86 dated 29 November 2021, subsequently amended on 2 December 2022, the Applicant seeks leave to apply for judicial review so as to challenge the Decision, which he asks to be quashed.

6.  I gave directions intended to bring this matter to a rolled-up hearing of the application for leave to apply for judicial review and, if appropriate, the substantive application for judicial review.

7.  At the hearing, the Applicant was represented by Counsel, Mr Anson Wong Yu Yat, who settled the Amended Form 86. The SCS was represented by Ms Jess Chan, acting Assistant Law Officer (Civil Law) of the Department of Justice. At the end of the hearing, I reserved my decision.

8.  This is my Judgment. It is longer and wordier than some of my other judgments, but many of the words are quotations of the words of others, whose forte is not brevity.

B.  The Requirement

9.  Before turning to the chronology of events, it is helpful first to identify what was required to be done by the Applicant before the deadline.

10.  Article 99 of the Basic Law expressly requires that public servants must be dedicated to their duties and be responsible to the Government of the HKSAR.

11.  That requirement is also set out in the Civil Service Code – see §1.2 and chapter 2 – circulated to all staff by the Civil Service Bureau (“CSB”) in CSB Circular 9/2009.

12.  Against that background and following the enactment of the National Security Law, in 2020, a decision was made that the CSB would impose a requirement (“Requirement”) that all civil servants should duly sign and return a declaration (“Declaration”) confirming that they will uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government.

13.  For civil servants appointed before 1 July 2020, the CSB issued CSB Circular 2/2021 dated 15 January 2021 (“Circular 2/2021”). Circular 2/2021 identified (at §3) that:

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

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

14.  It is helpful to note at this juncture that there is no challenge in these proceedings to the legality of the Requirement.

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

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

16.  Annex A to Circular 2/2021 is a blank Declaration form necessary to complete for compliance with the Requirement. That is, the Requirement would only be met by duly completing the Declaration. It is a bilingual form (Chinese and English) already bearing the necessary wording of the Declaration, which (in the English version) is as follows:

I declare that, as a civil servant of the Government of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, be dedicated to my duties and be responsible to the Government of the Hong Kong Special Administrative Region.

17.  The wording of the Declaration also has an asterisk, which points to the footnote stating “In case of any variation, addition or deletion to/of the declaration, the declaration will be rendered null and void”. The person making the simple Declaration merely needs to fill out his or her ‘Name’, ‘Hong Kong Identity Card No.’, ‘Rank’, ‘Signature’ and ‘Date’ on the printed lines next to those items.

18.  Annex B to Circular 2/2021 is the ‘Explanatory Note on the Content of the Oath or Declaration for Civil Servants’. Amongst other things, the Explanatory Note identified what might be required by, and what might constitute a breach of, the individual elements of the Declaration.

C.  Chronology of the Facts

19.  Both Mr Wong and Ms Chan submitted that the material exchanges between the Applicant and others immediately before, and following after, the deadline for providing the Declaration should be seen in context. I agree, and think it helpful to set out contextual matters in chronological order as follows.

20.  The Applicant had been a civil servant working in the Inland Revenue Department (“IRD”) since 18 June 1996.

21.  As noted above, Circular 2/2021 was issued on 15 January 2021. On 28 January 2021, the Commissioner of Inland Revenue requested the Applicant to sign and return the Declaration on or before 25 February 2021, the deadline set.

22.  The Applicant did not do so. This was despite reminders sent to him by the IRD on 16 February 2021 and 24 February 2021.

23.  Instead, at around 10:00am on 25 February 2021, the Applicant sent to the IRD the Declaration form, but without his ‘Name’, ‘Hong Kong Identity Card No.’, ‘Rank’, ‘Signature’ and ‘Date’ filled in by him. Rather, beneath the wording of the Declaration, the Applicant appended his hand written remarks, which (in English translation) were as follows:

As there are still many uncertainties or implications in this declaration, therefore I am unable to sign for the time being. Please see the attached page for the reasons.

24.  Mr Wong has sought to emphasize the words “for the time being”, but I do not think that changes the fact that the Applicant had failed duly to sign the Declaration before the deadline.

25.  The attached page (in English translation) read as follows:

I, WONG CHAU MING, holding the rank of Assistant Taxation Officer and the post of PC(BP)M8 (DPC), with staff number 10908, now state the reasons as follows:

1.  The necessity of signing the declaration. Since Hong Kong’s return to the Motherland, it has consistently been the duty of civil servants to abide by the Basic Law, bear allegiance to the Hong Kong Special Administrative Region and be dedicated to their duties. As stated in the “Explanatory Note”, “these expectations and responsibilities have already been in existence whether before or after the signing of the declaration”. So, what is the necessity and urgency of signing the declaration? Besides, by linking this matter to the termination of service, are my efforts in abiding by the Basic Law and being dedicated to my duties in serving the HKSAR Government and the general public for the 20 odd years since the return to the Motherland, but without being required to sign anything, being denied?

2.  How to define a breach of the declaration. Let us take a recent example for illustration. The HKSAR Government asked various departments of deploy manpower to work in vaccination centres. If someone is selected but refuses to help as requested, does that amount to a breach of the Declaration? If the answer is in the negative, could your esteemed Department publish or issue a certificate to me stating that no action would be taken in such situation?

26.  On its face, the first point is at least questioning if not openly challenging the Requirement and/or the need to comply with the Requirement by the stipulated deadline. But it is also instructive that the Applicant recognised the link between the failure to comply with the Requirement and termination of service.

27.  In response, the IRD wrote to the Applicant by letter dated 25 February 2021, which the Applicant acknowledged by his signature that he had received. The letter stated (emphasis in original):

Regarding your questions raised on 25 February 2021 regarding the requirement if oath / declaration for civil servants, this Department now replies as follows:

The Civil Service Bureau issued Civil Service Bureau Circular No. 2/2021 (“the Circular”) on 15 January 2021, promulgating the requirement that all civil servants of the Government of the Hong Kong Special Administrative Region of the People’s Republic of China (“the HKSAR Government”) who were appointed to the civil service before 1 July 2020 should declare that that they will uphold the Basic Law of the Hong Kog Special Administrative Region of the People’s Republic of China (“the Basic Law”), bear allegiance to the Hong Kong Special Administrative Region (“HKSAR”), be dedicated to their duties and be responsible to the HKSAR Government. In this connection, the Inland Revenue Department issued a notice to you on 28 January 2021 requiring you to submit the duly signed declaration to the Assistant Departmental Secretary of your Unit by 25 February 2021.

Under the Basic Law and the Civil Service Code, it has consistently been the duty of civil servants, and consistently been the expectation and requirement of Government and the society for civil servants, to uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government. This has also been what the Government and society expected and require to them all along. All civil servants should in no uncertain terms acknowledge and accept these duties.

In order to enhance civil servants’ awareness of the expectations and responsibilities brought on them by their official positions, an arrangement is introduced to require all civil servants who were appointed to the civil service before 1 July 2020 to declare that they will uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government. This is an open acknowledgement of the acceptance and a genuine manifestation of the responsibilities of and expectations on civil servants, which will further safeguard and promote the core values that should be upheld by civil servants, and ensure the effective governance of the HKSAR Government.

In addition, “The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (“Hong Kong National Security Law”) was enacted and promulgated in Hong Kong on 30 June 2020 and came into effect at 11 p.m. on the same day, Article 6 thereof stipulates that, “[a] resident of the [HKSAR] who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China in accordance with the law”.

With regard to the content of the oath / declaration, conducts which constitute a breach of the oath / declaration may take many different forms, and cannot be exhaustively listed. Nevertheless, each of the following misconducts are examples that would constitute a breach of the oath / declaration:

-  advocating or supporting “Hong Kong independence”;

-  refusing to recognise the People’s Republic of China’s sovereignty over the HKSAR and the exercise of the sovereignty;

-  soliciting intervention by foreign or external forces in the HKSAR’s affairs;

-  carrying out other activities endangering national security;

-  committing serious violation of the law, including violent acts that disrupt public order and safety;

-  using official position to further personal interests or the private interests of others;

-  expressing opinion contrary to the Government’s stance in their official capacity;

-  committing gross negligence of their duties or gross failure to discharge their duties.

If a civil servant commits a misconduct, the Government will, having regard to the actual circumstances of the case, taken appropriate disciplinary action(s) in accordance with the established mechanism against the officer for the misconduct committed. If the misconduct also involves a breach of the oath / declaration, the case will still be dealt with according to the civil service rules and regulations. In determining the punishment arising from such unlawful, rule breaching conduct in accordance with the Public Service (Administration) Order or the relevant disciplined services legislation, the Government will take into account the circumstances, nature and gravity of the case, etc., and will certainly also take into consideration the fact that the misconduct is committed by the civil servant even though the officer has taken an oath or signed a declaration to acknowledge the expectations and responsibilities brought by the official position on him / her. For any case which involves a breach of the oath / declaration, the disciplinary authority will consider whether it is suitable for the officer to continue to discharge his / her official responsibilities.

The relevant circular issued by the Civil Service Bureau to all policy bureaux and departments on 15 January 2021 has already elaborated on the content of the oath / declaration and what conducts constitute a breach of the oath / declaration. The Civil Service Bureau has also produced a short video (https://www.csb.gov.hk/tc_chi/admin/oathserving/oath_taking_video.html) to introduce the content of the oath / declaration to civil servants colleagues in a clear and lucid manner,

As to your enquiry, you may also refer to the relevant circular and the Frequently Asked Questions about the Oath-taking / Declaration Requirement for Civil Servants listed on the official website of the Civil Service Bureau (https://www.csb.gov.hk/tc_chi/admin/oathserving/2770.html).

Please note that if the Assistant Departmental Secretary of your Unit do not receive your duly signed declaration on 25 February 2021 (i.e. today) and you do not provide a reasonable explanation, the Government will, based on the actual circumstances of your case, initiate action to terminate your service.

28.  However, the Applicant did not duly sign the Declaration and provide it by the deadline as reminded. Therefore, the IRD wrote to the Applicant by letter dated 5 March 2021, saying:

Representations regarding the Failure to Duly Sign and Return the Declaration

We issued a letter to you on 28 January 2021, requesting you to duly sign and return the declaration on or before 25 February 2021 in accordance with Civil Service Bureau Circular No. 2/2021. We are now writing to invite you to explain the reasons for not duly signing and returning the declaration by the said deadline.

As we had not received your duly signed declaration by the deadline of 25 February 2021, you are required to submit a written explanation to the Assistant Departmental Secretary (Personnel and Establishment) on or before 12 March 2021, setting out the reasons for not duly signing and returning the declaration. If we do not receive any written explanation from you on or before 12 March 2021, you will be deemed to have refused to provide the explanation as required.

The Management Side will consider whether the written explanation submitted by you is reasonable in the light of your specific circumstances.

As set out in Civil Service Bureau Circular No. 2/2021 enclosed to our letter to you dated 28 January 2021, neglect, refusal or failure by a civil servant concerned to duly sign and return the declaration by the stipulated deadline without reasonable excuse reflects and officer’s refusal to acknowledge, accept and discharge the consistent duties of civil servants, and a serious lack of commitment to adhere to the core values of the civil service. Accordingly, the Government will, based on the actual circumstances of each case, initiate action to terminate the service of an officer who neglects, refuses or fails to duly sign and return the declaration in accordance with the mechanisms under the Public Service (Administration) Order or the relevant disciplined services legislation as appropriate. Where the concerned civil servant is on probationary or agreement terms, his / her probationary or agreement terms service shall be terminated in accordance with the Civil Service Regulations and terms of agreement.

29.  The Applicant acknowledged receipt of that letter on 8 March 2021. He also provided his response in his own letter dated 10 March 2021, which stated (in English translation):

To Whom It May Concern,

I, WONG Chau Ming, Staff No. 10908, hold the rank of Assistant Taxation Officer [and] the post of PC(BP)M8, thank you for your esteemed Department’s letters dated 25 February 2021 and 5 March 2021. As regards your esteemed Department’s consistent failure to (a) address my reasons for not signing and returning the declaration as stated at the marking* on the declaration page attached to my letter dated 25 February 2021, and (b) fully address the concerns I have raised, I feel deeply regretted.

*Note: the marking reads: “there are still many uncertainties and implications in this declaration.”

I reiterate that my stance is that I am unable to decide whether to sign the declaration for the time being. I am neither signing nor refusing to sign the declaration. During the period when your esteemed Department and I were communicating to clarify my concerns, your esteemed Department should exercise the discretion to follow the “stop-the-clock principle” (Stop-the-clock principle), and freeze the status quo at the time when the letter dated 25 February with the marking on the declaration page attached thereto was received.

I would like to take this opportunity to, on the basis of the letter dated 25 February with the marking on the declaration page attached thereto, again elaborate on and supplement the reasons for not signing.

1)  In terms of procedural justice, if whether signing the declaration or not will constitute a condition of the employment or one of the conditions of continuing the employment, please explain why the personnel handbook of the civil service has not been amended accordingly to incorporate the declaration in accordance with the relevant procedures; or to amend and incorporate into the statutes by way of legislation. The current procedural approach inevitably gives rise to a suspicion that the Government is trying to bypass certain social pressure groups, interest protection groups, and to bypass the Legislative Council.

2)  I myself am willing to comply with every and all applicable laws and statues in Hong Kong, including the Hong Kong National Security Law, the Prevention of Bribery Ordinance, etc. Please explain why it would still be a failure to fulfil and cover the content of the declaration, even though there is compliance with every and all applicable laws and statutes in Hong Kong. Please point out the discrepancies that still exist with the content of the declaration after complying with every and all applicable laws and statutes in Hong Kong.

3)  In my letter dated 25 February, I cited a real-life example (i.e. if a staff member was selected to work in a vaccination centre and refused to accept the assignment, whether or not this would constitute a breach of the declaration), but apart from receiving the standard response, I have not received any specific reply from your esteemed Department. My request of citing this example is akin to the public media’s request for the Government to disclose the “positive list of compliance with the declaration” and “negative list of contravention of the declaration”.

4)  I would like to reiterate a point, that as a Catholic, I need to thoroughly understand all declarations or oaths before making them. I do not wish to make a declaration giving promises that are beyond my ability to fulfil. I cannot accept your esteemed Department’s ambiguous or standard response, and I respectfully wish your esteemed Department could understand.

Besides, I have already stated my reasons and questions in writing on 25 February, but have so far only received the official standard answers. Does it mean documents other than a signed document will be neglected, and refused to be processed? I have also considered the frequently asked questions listed on the relevant webpage as stated in your esteemed Department’s letter, but none has provided answers addressing my concerns. I wish your esteemed Department could provide me with a detailed response!

30.  By letter dated 13 April 2021, the IRD wrote to the Applicant to inform him that he was interdicted from duty with effect from 14 April 2021, under section 13(1)(c) of the PS(A)O. In response, the Applicant sent a letter dated 19 April 2021, which stated:

Regarding your esteemed Department’s letter dated 28 January 2021 – titled “Oath-taking / Declaration Requirement for Civil Servants Appointed to the Civil Service before 1 July 2020”, I have already provided a written response on 25 February 2021 (see the attached reply letter dated 25 February 2021) (referred to as “Reply Letter A”).

Regarding your esteemed department’s letters dated 25 February 2021 and 5 March 2021 – titled “Representations regarding the failure to duly sign and return the declaration”, I have provided a written response on 10 March 2021, again elaborating on and supplementing the reasons for not signing, while at the same time raising 4 points of doubt in respect of which I requested your esteemed Department to clarify my concerns and sought further information from your esteemed Department, in order to foster my understanding of the content of the oath, so as to facilitate my consideration of whether or not to sign the oath (see the attached reply letter dated 10 March 2021) (referred to as “Reply Letter B”).

Without replying to and clarifying my concerns as a staff member and providing the required information, your esteemed Department hastily issued a notice of interdiction (Interdiction) on 13 April 2021. This causes me to feel deeply regretted, wronged and unfair.

I am hereby writing to request your esteemed Department to immediately withdraw the decision of issuing the notice of interdiction, and to allow me to reinstate to duty. Your esteemed Department is invited to consider the following factors:

1.  The letter dated 28 January 2021 from your esteemed Department was an unilateral notice (Unilateral notice), intending to vary or de facto vary (or even consolidate) a staff employment contract after the expiry of the period for signing the oath, while the existing terms of the staff employment contract have never recognized the deadline unilaterally imposed by your esteemed Department (i.e. 25 February 2021) as a reasonable deadline for signing. In viewing of the complexity and far-reaching implications of the content of the oath, staff members would need time to comprehend and digest. Your esteemed Department should have long anticipated that a normal staff member would naturally communicate with your esteemed Department to clarify concerns and/or to seek information, and ask for, or in effect ask for, an extension of deadline for signing.

2.  In Reply Letter B, I have reiterated and made it clear that I was “neither signing nor refusing to sign the declaration”. Therefore, it definitely does not in any way constitute a neglect of your esteemed Department’s requirement regarding oath-taking. Furthermore, in Reply Letter B, I believed that as the communication between your esteemed Department and me to clarify the concerns has not yet been completed, the “stop-the-clock principle” (Stop-the-clock principle) had reasonably been expected to apply and operate with effect from 25 February 2021, and according to the common law this is equivalent to having the status quo frozen by your esteemed Department. Your esteemed Department should not have allowed the deadline for signing the oath to expire without giving prior notice, and unreasonably and unilaterally forfeited at least 1 remaining day of the period for signing the oath, which may give rise to a breach of procedural justice (Procedural injustice).

3.  Since I have explicitly indicated that I did not refuse to sign the oath, and there is at least 1 day remaining for the deadline for signing the oath, which has not been forfeited, by reason of the status quo being frozen, the alleged “failure to sign and return the declaration by the stipulated deadline” does not accord with the facts and cannot be substantiated. This also rendered your esteemed Department’s decision to issue the interdiction notice on 13 April 2021 devoid of factual basis.

4.  Notwithstanding that I have exercised my right to be informed in Reply Letter B by requesting your esteemed Department to provide further information in order to foster my understanding of the content of the oath, so as to facilitate my consideration of whether or not to sign the oath / accept the variation of the terms of the staff employment contract, your esteemed Department has since 25 February 2021 continued to disregard, failed to directly respond to or even formally and explicitly rejected my request to seek the information I requested, and has neglected to provide me with a reasonable opportunity to sign the oath. These may constitute contracting by coercion and undue influence (Oppression and undue influence). Your esteemed Department is urged to issue a letter directly replying to the 4 points of doubt raised in Reply Letter B as soon as possible.

5.  In Reply Letter B, I have already pointed out that I was a Catholic who has a very high sensitivity to oaths or declarations with the nature of an oath. I cannot accept the ambiguous or standard response from your esteemed Department. I suspect that your esteemed Department has been very rigid when formulating and implementing this policy of “oath-taking / declaration”, failed to take into account the specificity of my case individually and only gave identical and standard responses, which is unfair.

It is believed that the decision of your esteemed Department to issue the notice of interdiction as caused by a misunderstanding, insufficient internal communication and explanation, and unclear guidelines issued by the senior management, such that, based on non-existent facts, my requests for clarification of concerns and further information were misinterpreted as neglecting or refusing to sign the oath. I have been serving the HKSAR Government and the general public in the Inland Revenue Department for 20 odd years, and wish to continue to serve the HKSAR Government and the general public in accordance with the content of the oath in the future. I would like to take this opportunity to indicate again that I am willing to reply to your esteemed Department as soon as possible after I receive a reply letter from your esteemed Department directly addressing the 4 points of doubt raised in Reply Letter B and explicitly notifying me of the resumption of the running of time. It is hoped that your esteemed Department can investigate the incident thoroughly as soon as possible, re-examine my case, provide me with a detailed reply and open up a window for the deadline for signing the oath.

I reserve all the rights to initiate internal proceedings and take legal actions for recovery.

31.  In its reply dated 6 May 2021, the IRD notified the Applicant that, having considered the relevant factors and circumstances of the case, the IRD remained of the view that the Applicant should be interdicted from duty. It also informed the Applicant that the CSB had issued a letter on the same date informing him that consideration has been given to requiring him to retire in the public interest pursuant to section 12 of the PS(A)O.

32.  The letter from the CSB dated 6 May 2021 stated (in English translation):

We hereby write to inform you that, due to your failure to duly sign and return the declaration mentioned in paragraph 5 below as required and your failure to provide any reasonable explanation, the Government has lost confidence in your suitability to continue discharging your duties as a public officer and is considering to require you to retire in the public interest under section 12 of the Public Service (Administration) Order (hereinafter referred to as “the Order”).

Section 12 of the Order

Section 12 of the Order provides that the Chief Executive may, upon a consideration of the report submitted by the head of any department in which an officer has served, and any representations made by the officer concerned, required the officer to retire from the service, if he is of the opinion that, having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer’s service is desirable in the public interest, and the officer’s service shall accordingly terminate on such date as the Chief Executive may specify. A copy of section 12 of the Order is attached for your reference.

The actual circumstances and factors of consideration of the case

The Government issued the Civil Service Bureau Circular No. 2/2021 (hereinafter referred to as “the Circular”) on 15 January 2021, promulgating that all civil servants of the Government of the Hong Kong Special Administrative Region of the People’s Republic of China (hereinafter referred to as “the HKSAR Government”) who were appointed before 1 July 2020 are required to declare that they will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereinafter referred to as “the Basic Law”), bear allegiance to the Hong Kong Special Administrative Region (hereinafter referred to as “the HKSAR”), be dedicated to their duties and be responsible to the HKSAR Government. The Circular is for the perusal and compliance by all officers. The Circular has elaborated on the content of the oath / declaration and the kinds of conduct that would constitute a breach of the oath / declaration. In addition, the Civil Service Bureau had produced a short video to introduce the content of the oath/declaration to civil servant colleagues in a clear and lucid manner. The Inland Revenue Department’s reply to you dated 25 February 2021 again explained that the signing of a declaration is an open acknowledgement of the acceptance and a genuine manifestation of the responsibilities of and expectations on civil servants and provided examples of breaches of the oath / declaration.

Therefore, the Inland Revenue Department wrote to you on 28 January 2021 requesting you to sign and return the Declaration by the deadline of 25 February 2021. As stated in the Circular and reiterated in that letter, the Government, having regard to the actual circumstances of each case, will initiate actions to terminate the services of officers who neglect, refuse or fail to comply with the prescribed requirement to duly sign and return the declaration.

As the Inland Revenue Department had not received your signed declaration by the deadline of 25 February 2021, it further wrote to you on 5 March 2021, requesting you to explain in writing by 12 March 2021 the reasons for neglecting, refusing or failing to comply with the prescribed requirement to sign and return the declaration.

On 10 March 2021, the Inland Revenue Department received your written reply to its letter dated 5 March 2021. Having carefully considered the contents of your written reply, the Commissioner of Inland Revenue was of the view that you had not provided any reasonable explanation for neglecting, refusing or failing to comply with the prescribed requirement to sign and return the declaration by the stipulated deadline.

On 9 April 2021, the Commissioner of Inland Revenue reported to the Civil Service Bureau that you had, without reasonable explanation, neglected, refused or failed to comply with the prescribed requirement to sign and return the declaration by the stipulated deadline.

Intention to take actions under section 12 of the Order

As stated in the Circular, it has consistently been the duly of civil servants to uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government under the Basic Law and the Civil Service Code. All civil servants shall in no uncertain terms acknowledge and accept these duties. If a civil servant, without reasonable explanation, neglect, refuses or fails to comply with the prescribed requirement to duly sign and return the declaration by the stipulated deadline it reflects that the officer refuses to acknowledge, accept and discharge the consistent duties of civil servants, and lacks commitment to adhere to the core values of the civil service. This affects the good governance of the Government and the respect and confidence of the public in the civil service.

As you have, without reasonable explanation, neglected, refused or failed to comply with the prescribed requirement to sign and return the declaration by the stipulated deadline, the Government has lost confidence in your suitability to continue discharging your duties as a public officer and is considering to require you to retire in the public interest under section 12 of the Order.

Handling of retirement and leave benefits of officers required to retire in the public interest

Retirement in the public interest under Section 12 of the Order is not a form of disciplinary punishment, however you will be terminated from service by the Government. You will be granted a deferred position. Calculation of your pension as prescribed in the respective pension legislation will be based on your highest pensionable emoluments, length of pensionable service (up to the date of termination of your service) and the relevant pension factor. In addition, you will be granted your earned leave upon cessation of action service.

Invitation to make representations

Before the Government exercises the power conferred by section 12 of the Order, you may make representations showing cause why the above-mentioned course of termination of service should not be taken in your case. If you intend to submit written representations, please send your written representations to the undersigned within 14 calendar days from the date of issue of this letter, failing which this Bureau will deem you as not intending to make any representations. Representations which reach this Bureau after the above deadline will not be accepted.

After considering your representations (if any), this Bureau will submit your case to the Public Service Commission for advice, and communicate with you again, if necessary, before submitting your case to the Secretary for the Civil Service (as the officer to whom the Chief Executive has delegated the authority) for making the final decision on whether to require you to retire in the public interest under section 12 of the Order.

33.  In response to the IRD’s letter of 6 May 2021, the Applicant sent a letter dated 17 May 2021, stating (in English translation):

I, WONG Chau Ming, have received your esteemed Department’s letter dated 6 May 2021. Since 25 February 2021, your esteemed Department has continued to give irrelevant answers to my questions, and disregarded, failed to directly respond to or even formally explicitly refused my requests for clarification of my concerns and the information I requested, and has neglected to provide me with a reasonable opportunity to sign the oath. I feel deeply regretted, wronged and unfair.

It is understood that the Civil Service Bureau has issued me a letter dated 6 May 2021 and provided me with an opportunity to make representations, because of their triggering and consideration of invoking section 12 of the Public Service (Administration) Order. However, this opportunity to make representations and your esteemed Department’s obligation to follow up on and reply to my previous letters are two independent matters. The opportunity to make representations does not obstruct your esteemed Department from continuing to follow up on and reply to my queries and request for information as mentioned in my previous letters. It is hereby requested that your esteemed Department continue following up on and replying to the following letters: (a) Reply Letter A dated 25 February 2021; (b) Reply Letter B dated 10 March 2021; and (c) Reply Letter C dated 19 April 2021.

For the convenience of record, the content of Reply Letter A dated 25 February 2021 is reproduced below [letter then set out in full].

I would like to reiterate that the 4 questions or enquiries in the above Reply Letter A are rather meaningful. Regarding the question of “whether the deployment of manpower to vaccination centres is in conflict with the signing of the declaration” as stated in Reply Letter A, after I had received the notice of interdiction, I called the Inland Revenue Department (Ms. Kristy Chan) on 20 April 2021 to further enquire about the relevant situation. The explanations I was given were that: “no comment would be made on the individual incident which had already concluded” and “the occurrence of similar incidents in the future is a hypothetical question, and therefore no reply could be made”. Even if the Inland Revenue Department considered my queries as “no comment” or “hypothetical questions that could not be answered”, could your esteemed Department explain why the your esteemed Department did not inform me clearly and explicitly in its letter to me at around 5:00 p.m. on 25 February 2021 that the relevant queries had been regarded as “no comment” or “hypothetical questions that could not be answered”, and then proceed to make a refusal to answer or indicate that there was no further information to be provided, and also did not inform me of the resumption of the counting of time and the return to the request for the signing of oath.

Your esteemed Department is urged to understand that, as your esteemed Department has not denied or has already acquiesced that, the deadline for signing the oath has been reasonably expected to have been frozen by the Inland Revenue Department since 25 February 2021 according to the common law due to circumstantial factors (circumstances). Your esteemed Department is hereby requested to issue a supplementary notice (supplementary notice) specifically regarding the letter sent to me at around 5:00 p.m. on 25 February 2021 and recording clearly and explicitly that my queries had been regarded by Inland Revenue Department as “no comment” or “hypothetical questions that could not be answered” and pointing out that no further information could be provided.

I did not neglect or refuse to sign the declaration. Based on my religious belief and respect for this declaration, I have repeatedly expressed my wish and raised queries, and explained that I could not find the relevant answers in the Circular or the video clip to address my concerns. In the absence of negotiation, I was defined/determined as “refusing to sign” or “failing to give a reasonable explanation” which resulted in my interdiction from duty or even required retirement. If civil servants are required to have commitment, the Inland Revenue Department, as the employer, should shoulder greater responsibilities in addressing all the concerns of its staff and colleagues, instead of shifting the blame to me by saying that I “failed to provide a reasonable explanation”. There is indeed a great sense of injustice being done to me.

I was employed to take a position in the “departmental grade”, instead of the “general grade”. My scope of work basically revolves around the Inland Revenue Department and the handling of tax-related work. The question on the “vaccination centre incident” in Reply Letter A was intended to allow me to understand whether the signing of the Declaration would drag me into a necessary relationship with an incident similar to that, as this would lead to a change in the terms of the contract of employment to the effect that they would cover the scope of work of the “general grade”. Whether I would need to deal with work beyond taxation work is also the reason why I would like to seek clarification of the relationship therein, as I did not want to be in conflict with or in breach of this.

Moreover, according to a paragraph titled “The Actual Circumstances and Factors of Consideration of the Case” in the letter dated 6 May 2021 from the Civil Service Bureau, your esteemed Department, as the employer, had submitted a report to the Civil Service Bureau on 9 April 2021 alleging that I had “neglected, refused to sign, or failed to sign and return the oath by the stipulated deadline”. Given that there is at least 1 day remaining for the deadline for signing the oath, which has not been forfeited, by reason of the status quo being frozen, the conclusion, determination or allegation of the so-called “expiry of deadline” or “failure to sign and return the oath by the stipulated deadline” do not accord with the facts. As the report did not accord with facts, I would like to request your esteemed Department to investigate the case thoroughly as soon as possible, to re-examine my case, to respond to my request directly, and to inform the Civil Service Bureau to rectify the said report dated 9 April 2021.

Lastly, I implore your esteemed Department to thoroughly understand my concerns and provide me with a clear point-to-point reply, to give some more time, to allow a window for the deadline of signing the oath be opened up, and to provide me with a new printed copy of the declaration for me to reply. Thank you!

34.  In response to the CSB’s letter dated 6 May 2021, and in provision of the representations invited by that letter, the Applicant wrote a letter dated 18 May 2021. The letter and his representations were as follows (in English translation):

A. Background

1. I, WONG Chau Ming, have received a letter dated 6 May 2021 from your esteemed Bureau. I hereby make representations in accordance with section 12 of the Public Service (Administration) Order (referred to as “the Order”).

2. First of all, I would like to ask the Permanent Secretary to convey to the Chief Executive and/or the Public Service Commission that this case is a case of injustice, and I feel deeply disappointed, wronged and unfair. Section 12 of the Order should never have been invoked against me and should never have been initiated or even triggered.

B. Factual Part

1. As revealed in the Civil Service Bureau’s letter dated 6 May 2021 – the paragraphs on “The Actual Circumstances and Factors of Consideration of the Case”, the Inland Revenue Department, as the employer, had submitted a report to the Civil Service Bureau on 9 April 2021 alleging that I had “neglected, refused to sign, or failed to sign and return the oath by the stipulated deadline”. This report did not accord with the facts, and rendered the Inland Revenue Department’s decision to issue an interdiction notice (Interdiction) on 13 April 2021 and the Civil Service Bureau’s decision to trigger section 12 of the Order on 6 May 2021 devoid of factual basis.

2. As shown in the Civil Service Bureau’s letter dated 6 May 2021 – the paragraph on “The Actual Circumstances and Factors of Consideration of the Case”, the Inland Revenue Department’s report dated 9 April 2021 did not point out that I had already written to the Inland Revenue Department in the morning on 25 February 2021 to report about being “unable to sign for the time being” and to raise 4 points of doubt in respect of which I requested the Inland Revenue Department to clarify my concerns and sought further information from the Inland Revenue Department (see attached the reply letter dated 25 February 2021) (referred to as “Reply Letter A”). Although the Inland Revenue Department issued a letter to me on 25 February 2021 at nearly 5:00 p.m., that letter gave irrelevant answers to the questions, and was evasive. It disregarded, failed to directly respond to, or even formally and explicitly refused my request for the required information. It also neglected to give me reasonable time and opportunity to read, comprehend and digest the letter, and neglected to provide me with a reasonable opportunity to sign the oath before letting the deadline for signing the oath to expire.

3. The Inland Revenue Department’s report dated 9 April 2021 did not mention that I had already started communication and dialogue with the Inland Revenue Department through letter correspondences on 25 February 2021, with a view to achieving the purpose of clarifying concerns and exchanging information. Subsequently, the Inland Revenue Department sent me a letter dated 5 March 2021 and I made a written response on 10 March 2021 (see attached the reply letter dated 10 March 2021) (referred to as “Reply Letter B”). However, the Inland Revenue Department also did not make it clear to the Civil Service Bureau that such correspondence were a continuation of the communication following previous communication, clarification of concerns and request for further information which were in vain. Therefore, I wrote to the Inland Revenue Department on 19 April 2021, again requesting the Inland Revenue Department to follow up on and reply to my Reply Letter A (see attached the reply letter dated 19 April 2021) (referred to as “Reply Letter C”). It is believed that the Inland Revenue Department also failed to report my Reply Letter C to the Civil Service Bureau, which resulted in a failure in upward communication and as such the Civil Service Bureau did not cover the contents of Reply Letter C in the letter dated 6 May 2021 from Civil Service Bureau - in the paragraph on “The Actual Circumstances and Factors of Consideration of the Case”.

4. For the convenience of record, the content of Reply Letter A dated 25 February 2021 is reproduced below [content of letter reproduced].

5. I reiterate that, apart from the letter/letters which gave irrelevant answers to what were asked, up to the date of this written representation, I have neither received any direct response in writing from the Inland Revenue Department, nor even a formal and clear rejection of my requests for clarification of concerns and for necessary information.

6. I reiterate that the 4 questions or enquiries in the above Reply Letter A are rather meaningful. As regards the Inland Revenue Department’s irrelevant answers given on 25 February 2021 and 5 March 2021 on the question as contained in Reply Letter A on “whether the deployment of manpower to vaccination centres is in conflict with the signing of the declaration”, I, upon receipt of the notice of interdiction, called the Inland Revenue Department (Ms. Kristy Chan) on 20 April 2021 to further enquire about the relevant situation. The explanations given by Ms. Chan of the Inland Revenue Department were that: “no comment would be made on the individual incident which had already concluded” and “the occurrence of similar incidents in the future is a hypothetical question, and no reply could be made”. Even if the Inland Revenue Department considered my queries as “no comment” or “hypothetical questions that could not be answered”, I am unable to understand why the Inland Revenue Department did not inform me clearly and explicitly in its letter to me at around 5:00 p.m. on 25 February 2021 that the relevant queries had been regarded as “no comment” or “hypothetical questions that could not be answered” and then refuse to answer in writing, or indicate that there was no further information to be provided, and also did inform me of the resumption of the counting of time and the return to the request for the signing of oath. I doubt very much whether the Chief Executive and/or the Public Service Commission would agree that the Inland Revenue Department could respond to a staff member’s queries which are considered as “no comment” or “hypothetical questions” with silence, and in doing so misleading a staff member into expecting a response.

7. I did not neglect or refuse to sign the declaration. Based on my religious belief and respect for this declaration, I have repeatedly expressed my wish and raised enquiries, and explained that I could not find the relevant answers in the Circular or the short video to address my concerns. In the absence of negotiation, I was defined/determined as “refusing to sign” or “failing to give a reasonable explanation” which resulted in my interdiction from duty or even required retirement. If civil servants are required to have commitment, the Inland Revenue Department, as the employer, should shoulder greater responsibilities in addressing all the concerns of its staff and colleagues, instead of shifting the blame to me by saying that I “failed to give a reasonable explanation”. There is indeed a great sense of injustice being done to me.

8. I was employed to take a position in the “departmental grade”, instead of the “general grade”. My scope of work basically revolves around the Inland Revenue Department and the handling of tax-related work. The above-mentioned question on the “vaccination centre incident” in Reply Letter A was intended to allow me to understand whether the signing of the declaration would drag me into a necessary relationship with an incident similar to that, as this would lead to a change in the terms of the contract of employment to the effect that they would cover the scope of work of the “general grades”. Whether [Applicant’s comment: no question are mentioned] I would need to deal with work beyond taxation work is also the reason why I would like to seek clarification of the relationship therein, as I did not want to be in conflict with or in breach of this.

9. Regarding the Inland Revenue Department’s cessation or delay in responding to my Reply Letter C dated 19 April 2021, I have written to the Inland Revenue Department on 17 May 2021 (see attached the reply letter dated 17 May 2021) (referred to as “Reply Letter D”) requesting for the third time the Inland Revenue Department to follow up on and respond directly to my Reply Letter A. Through Reply Letter D, I requested the Inland Revenue Department to: (a) issue a supplementary notice (supplementary notice) specifically regarding my letter dated 25 February 2021, recording clearly and explicitly that my queries had been determined by Inland Revenue Department as “no comment” or “hypothetical questions that could not be answered” and pointing out that no further information could be provided; and (b) take the initiative to inform the Civil Service Bureau to rectify the Inland Revenue Department’s report dated 9 April 2021.

10. Could the Civil Service Bureau please understand that, in my Reply Letter B, I have reiterated and made it clear that I was “neither signing nor refusing to sign the declaration”, and that I have written to the Inland Revenue Department on multiple occasions to ask for follow-up actions (i.e. Reply Letters A, B, C and D). As such, it definitely does not constitute a disregard or refusal to comply with the Civil Service Bureau’s or the employer side’s request regarding oath-taking. On the contrary, I think this reflects that I take the content of the oath seriously without doing it without thought by signing and returning the oath perfunctorily like others. I consider that the Inland Revenue Department’s report dated 9 April 2021 erroneous in its conclusions on the facts. It failed to provide, cover and consider the facts in their entirety and in the whole, resulting in an error of judgment.

11. I implore the Chief Executive, the Civil Service Bureau and/or the Public Service Commission to look into the matter meticulously and observantly.

C. Procedural Part

1. The letter dated 28 January 2021 from the Inland Revenue Department, as the employer, was a unilateral notice (Unilateral notice) intending to vary or de facto vary (or even consolidate) a staff employment contract after the expiry of the period for the signing of oath, while the existing terms of the staff employment contract have never recognized the deadline unilaterally imposed by Inland Revenue Department (i.e. 25 February 2021) as a reasonable deadline for signing. In view of the complexity and far-reaching implications of the content of the oath, staff members would need time to comprehend and digest. The Inland Revenue Department should have long anticipated that a normal staff member would naturally communicate with the Inland Revenue Department to clarify concerns and/or seek information, and ask for, or in effect ask for, an extension of deadline for signing.

2. In Reply Letter B, I believed that as the communication between the Inland Revenue Department and me to clarify the concerns has not yet been completed, circumstantial factors (circumstances) dictated that the “stop-the-clock principle” (Stop-the-clock principle) had reasonably been expected to apply and operate with effect from 25 February 2021, and according to the common law this is equivalent to having the status quo frozen by the Inland Revenue Department. The Inland Revenue Department should not have allowed the deadline for signing the oath to expire without giving prior notice and unreasonably and unilaterally forfeited at least 1 remaining day of the period for signing the oath, which may give rise to a breach of procedural justice (Procedural injustice).

3. To my knowledge, up to the date of this written representation, the Inland Revenue Department has not denied or has acquiesced that the deadline for signing the oath had been frozen since 25 February 2021 as dictated by circumstantial factors (circumstances) in accordance with the common law. Given that there is at least 1 day remaining for the deadline for signing the oath, which has not been forfeited, by reason of the status quo being frozen, the conclusion, determination or allegation of the so-called “expiry of deadline” or “failure to sign and return the oath by the stipulated deadline” do not accord with the facts. This also rendered the decision of Inland Revenue Department to issue the notice of interdiction on 13 April 2021 and the decision of the Civil Service Bureau to trigger section 12 of the Order on 6 May 2021 devoid of basis of procedural justice.

4. In Reply Letter B, I have already pointed out that I am a Catholic who has a very high sensitivity to oaths or declarations with the nature of an oath. The Inland Revenue Department’s identical and formulaic responses again constituted another example of it giving irrelevant answers to questions. I suspect that the Inland Revenue Department has been very rigid when formulating and implementing this policy of “oath-taking / declaration”, failed to take into account the specificity of my case individually, and only gave identical and formulaic responses, which is unfair.

D. Disproportionate handling of the case

1. Combining the above factual and procedural aspects, this case of incomplete “oath-taking” document or miscarriage of justice purely originated from the administrative mistakes (administrative mistakes) caused by a misunderstanding and the insufficient internal communication and explanation by the Inland Revenue Department or the employer side, which cannot reasonably reach the grave inferences such as “consistent responsibilities of civil servants, the lack of commitment to the core values of the civil servants, impacting on the good governance of the Government, impacting on the public respect and confidence in the civil service community” and so on. Triggering or initiating the invocation of section 12 of the Order to deal with administrative mistakes is absolutely disproportionate.

2. To trace the origin, I would like to ask the Chief Executive, the Civil Service Bureau and/or the Public Service Commission to recall what the legislative intent of section 12 of the Order was at the time of its creation. I believe that the legislative intent of section 12 of the Order was not to deal with matters such as administrative mistakes and incompleteness of oath-taking document arising from inadequate communication and explanation.

E. Proposed Settlement Proposals

1. Since: (a) I have already written to the Inland Revenue Department before the deadline of 25 February 2021 to report about being “unable to sign for the time being”, (b) I have already written to the Inland Revenue Department on 10 March 2021 to explicitly indicate that I did not refuse to sign the oath, (c) the Inland Revenue Department has all along not denied or has acquiesced that the deadline for signing the oath has been frozen from 25 February 2021 as dictated by circumstantial factors (circumstances), (d) the status of the deadline of signing the oath has been frozen since 25 February 2021 and there is at least 1 remaining day which has not been forfeited, (e) I have been serving the HKSAR Government and the general public for more than 20 years in the Inland Revenue Department, and I have also written to the Inland Revenue Department on 19 April 2021 to express my willingness to continue serving the HKSAR Government and the general public according to the content of the oath in the future, I would like to take this opportunity to make settlement proposals again as follows:

2. I consider that it is unnecessary for the Civil Service Bureau to request the Inland Revenue Department to provide any supplemental notice in response to my letter dated 25 February 2021 to clearly and explicitly state that my queries have been determined by the Inland Revenue Department as “no comment” or “hypothetical questions and therefore could not be answered”, and that it is not necessary to request the Inland Revenue Department to rectify the report written and submitted on 9 April 2021, and to show leniency to the Inland Revenue Department.

3. In order to provide convenience to expedite the rectification of the administrative mistakes, I recommend the Civil Service Bureau to make a spanning conclusion or overriding conclusion (overriding conclusion) on the Inland Revenue Department’s report. I recommend that the Chief Executive and/or the Civil Service Bureau and/or the Inland Revenue Department allow the opening up of a window for the deadline of signing the oath, or allow the late submission of the oath (late submission). Upon receipt of the written reply from the Civil Service Bureau or the Inland Revenue Department or the employer side, if the contents of reply do not give rise to and worth further discussion, dispute or enquiry, I am willing to pay a late submission fee of HK$100 (late submission fee) and undertake to sign and return the declaration as required, by the deadline for signing the oath as set by the Civil Service Bureau or the Inland Revenue Department or the employer side, or within 5 working days after receiving the reply, to the Inland Revenue Department, the Civil Service Bureau or a department designated by the employer side, with the signature backdated to 25 February 2021 (back dated to 25 May 2021), in order to resolve the matter satisfactorily.

4. In the event that the Chief Executive and/or the Civil Service Bureau and/or the Public Service Commission is minded to continue to rely on the report written and submitted by the Inland Revenue Department on 9 April 2021 in making any decision or invoking section 12 of the Order, please release the report dated 9 April 2021 to me and my legal representatives, and allow me to engage legal representatives to defend and make representations. Thank you.

F. Reference Annex

1. Letter of Reply dated 25 February 2021 (referred to as “Reply Letter A”)

2. Letter of Reply dated 10 March 2021 (referred to as “Reply Letter B”)

3. Letter of Reply dated 19 April 2021 (referred to as “Reply Letter C”)

4. Letter of Reply dated 17 May 2021 (referred to as “Reply Letter D”)

35.  By letter dated 9 July 2021, the IRD responded to the Applicant’s letter dated 17 May 2021. The IRD pointed out that the Applicant had failed to provide a duly signed declaration by the relevant deadline, and that having considered the written explanations for his not doing so, the IRD considered that there had been a failure to provide any reasonable explanation. The letter concluded by saying that it had nothing further to add to the responses already given to the Applicant’s letters dated 25 February, 19 April and 17 May 2021. This is perhaps not surprising, in light of the repetitive content of those letters, to which a substantive reply had already been sent.

36.  The CSB also wrote to the Applicant by letter dated 9 July 2021. It stated (in English translation):

This Bureau sent you a letter on 6 May 2021 informing you that due to your failure to sign and return the declaration as required by the deadline stipulated by the Inland Revenue Department (i.e. 25 February 2021) and your failure to provide any reasonable explanation, the Government had lost confidence in your suitability to continue discharging your duties as a public officer and was considering to require you to retire in the public interest under section 12 of the Public Service (Administration) Order (hereinafter referred to as “the Order”). Your written representations dated 18 May 2021 in response to the abovementioned letter were received.

In your written representations, you queried that the report submitted by the Inland Revenue Department to this Bureau (i.e. you “neglected”, refused to sign, or failed to sign and return the declaration by the stipulated deadline”) was “inconsistent with the fact”, and that the report did not mention your earlier correspondence with the Inland Revenue Department (including your explanation regarding the refusal of signing the declaration in your reply letters dated 25 February and 10 March 2021) and your views regarding the interdiction arrangement in your reply letter dated 19 April, which you enclosed to your said representations). You therefore questioned that there was “no factual basis” for this Bureau to consider to require you to retire under section 12 of the Order. Regarding the above queries, we fully disagree. We must set out the relevant facts to set the record straight.

Although you repeatedly mentioned that you “did not neglect or refuse to sign the declaration”, as a matter of fact you did not indeed sign and return the declaration by the stipulated deadline (i.e. 25 February 2021). This is very clear. When the Inland Revenue Department submitted the report to this Bureau, copies of the correspondence between the Department and you had been enclosed thereto, including the letters from the Inland Revenue Department to you respectively dated 28 January, 25 February and 5 March 2021, and your letters to the Department dated 25 February and 10 March 2021. Subsequently, the Inland Revenue Department also reported to this Bureau about your letter dated 19 April. These letters have been considered by this Bureau in considering to require you to retire under section 12 of the Order.

As mentioned in this Bureau’s letter to you dated 6 May 2021, the Inland Revenue Department sent you a letter on 28 January 2021 requesting you to sign and return the declaration by the deadline of 25 February. It has also come to the Bureau’s attention that you wrote to the Inland Revenue Department on 25 February 2021 indicating you were “unable to sign for the time being”. In this connection, the Inland Revenue Department issued a written reply to you on the same day. Apart from providing responses and explanations to your queries, the reply also reminded you that if the Department did not receive your duly signed declaration on 25 February 2021 and you also did not provide reasonable explanation, the Government would, based on the actual circumstances of your case, initiate action to terminate your service.

Subsequently, since the Inland Revenue Department had not received your signed declaration by the deadline of 25 February 2021, the Inland Revenue Department wrote to you on 5 March 2021 requesting you to explain in writing by 12 March 2021 the reasons for your neglect, refusal or failure to sign and return the declaration in accordance with the prescribed requirement. On 10 March 2021, the Inland Revenue Department received your written reply to the said letter dated 5 March 2021. Having carefully considered the contents of your written reply, the Commissioner of Inland Revenue was of the view that you had not provided any reasonable explanation for the neglect, refusal, or failure to comply with the prescribed requirement to sign and return the declaration by the stipulated deadline, and submitted a report to the Civil Service Bureau. Enclosed to the report were the correspondences exchanged between the Inland Revenue Department and you (i.e. the correspondences listed in paragraph 3 above). This Bureau considered that there was no omission in the report made by the Inland Revenue Department to this Bureau, and that the Inland Revenue Department has responded appropriately to your queries on the content of the declaration.

The deadline for you to sign and return the declaration has always been 25 February and this has not changed. The letters from the Inland Revenue Department to you dated 28 January and 25 February 2021 both clearly stated that the said date is the deadline for signing and returning the declaration. The Government has never agreed to extend the relevant deadline and did not agree with the “reasonable expectation” of an extension of the relevant deadline as you alleged.

In addition, in respect of the queries raised by you in the letter to the Management Side of the Inland Revenue Department on the said day on the meaning of a breach of the declaration, the Bureau issued the Civil Service Bureau Circular No. 2/2021 (“the Circular”) to the respective departments in January 2021 to explain the content of the oath / declaration and what actions would constitute a breach of the oath / declaration, and the Inland Revenue Department also gave you a written reply on the day of receiving your letter (i.e. before the deadline for signing and returning of the declaration on 25 February 2021), but you did not return the duly signed declaration by the stipulated deadline after receiving the reply.

This Bureau would like to reiterate again that, according to the Basic Law and the Civil Service Code, it has consistently been the duty of civil servants to uphold the Basic Law, bear allegiance to HKSAR, be dedicated to their duties and be responsible to the HKSAR Government. All civil servants shall in no uncertain terms acknowledge and accept these duties. If a civil servant, without reasonable explanation, neglects, refuses or fails to comply with the prescribed requirement to duly sign and return the declaration by the stipulated deadline, it reflects that an officer’s refusal to acknowledge, accept and discharge the consistent duties of civil servants and lacks commitment to adhere the core values of the civil service. This will affect the good governance of the Government and the respect and confidence of the public in the civil service.

As mentioned in this Bureau’s letter dated 6 May 2021, after considering your representations, this Bureau will submit your case to the Public Service Commission for advice, and if necessary, submit your case to the Secretary for the Civil Service for a decision on whether to require you to retire from the service in the public interest under section 12 of the Order. If you intend to submit further representations, please send your representations to the undersigned within 7 calendar days from the date of issue of this letter (i.e. on or before 16 July), failing which this Bureau will deem you as not intending to make any representations. Representations which reach this Bureau after the above stipulated deadline will not be accept.

37.  In his reply dated 16 July 2021to the Permanent Secretary for the Civil Service (“PSCS”), the Applicant first noted that, after rounds of correspondence, the IRD and CSB had not been able to reach a consensus on the facts with him, as each was still insisting on its own version. The Applicant then stated that he would put the salient points of difference on record, which he did in tabular form. Thereafter, the Applicant’s letter continued (in English translation):

I now make the representations as follows:

1.  Overview

Considering the above salient points of difference (7 instances of differences and 10 instances of similarities), it is noted that the non-existence/incompleteness of the oath-taking document was indeed originated from a misunderstanding, and there was indeed no factual basis and procedural justice. It arose out of the misinterpretation that I have neglected and refused to sign the oath, or waived the right to sign and return the oath. If I had deliberately chosen to give up my right to sign and return the oath, I would not have done so much of explaining to actively follow up on and correct the misinterpretation made by the Inland Revenue Department and your esteemed Bureau regarding the incident or against me. Perhaps the employer and employee involved are unconsciously trapped in their own blind spots.

I originally thought that you, as the head bureau of civil servants, should be more objective in coordinating and negotiating in order to resolve the incident, but I have only received a formulaic answer. Up to 14 April 2021, the Inland Revenue Department’s reply still revolved around the established internal circulars and webpage information, and the responses were compiled by merely repeating and piecing together the contents of the Civil Service Bureau Circular. Not only did it fail to answer my questions point by point, it also failed to explain clearly the chapters and sections of the Civil Service Bureau Circular that had already given explanations, not to mention that none of the relevant officers showed any care about whether I understood. Instead, they just gave me hasty and perfunctory replies to get rid of the matter. Is this a so-called “appropriate reply”? Is this the proper attitude to take to clear up a colleague’s confusion? Does your esteemed Bureau think that I could on that day understand thoroughly and give a reply?

Despite being a junior staff member of the Inland Revenue Department, I know how to follow up on queries made by the public on a daily basis. When a taxpayer raises a query, should I just answer him/her that the Inland Revenue Department’s webpage has already explained the matter very clearly and elaborated on the query, leaving the questions of whether it is understood or whether the query has been answered point-by-point as matters of his/her own? Please do not keep shifting the blame on me and let civil servant colleagues have a clear understanding of all the circulars issued and their contents. I think the management should bear the responsibility without shirking to others.

2.  The dispute between a point of fact and the full set of facts

Although the point of fact that “the declaration was not signed and returned by the stipulated deadline (i.e. 25 February 2021)” as stated in your esteemed Bureau’s letter dated 9 July 2021 is very clear, it is, however, not the whole truth. A point of fact is not the same as the full set of facts. The full set of facts is that the non-existence/incompleteness of the oath-signing document is a natural result of the Inland Revenue Department’s forgetfulness, arising from the fact that the Inland Revenue Department (a) unconsciously forgot that the 7 hours frozen from the receipt of Wong’s written report at 10:00 a.m. to the time of writing to Wong at 5:15 p.m. on 25 February 2021 has not been returned, and (b) the Inland Revenue Department’s reply at 5:15 pm on 25 February 2021 gave irrelevant answers to the questions, was incomplete and inappropriate and did not include responses that should have been included earlier.

It is to be understood that the fact that the Inland Revenue Department did reply does not mean that the reply was adequate or appropriate. The Inland Revenue Department should not have hastily focused solely on dismissing Wong’s queries and rushing to close the deadline window at 5:30 p.m. on 25 February 2021 in order to avoid seeking authorization from the Civil Service Bureau or internally for a deferral/change of the relevant deadline, and it should not have neglected to give reasonable time for Wong to read, comprehend and digest the letter, and it should not have neglected to give reasonable opportunity for Wong to sign and return the oath before letting the deadline for the signing of the oath to expire (there were only 15 minutes from 5:15 p.m. to the end of the office hours at 5:30 p.m., which was very embarrassing, very unreasonable and very unsympathetic), and it should not have unilaterally assumed that the communication to clarify the concerns had already been over, and it should not have unilaterally ruled out the possibility of the need for further discussion, dispute or enquiry, and it lacked the open-mindedness to communication and enquiries. In addition, the Inland Revenue Department’s written reply dated 25 February 2021 at 5:15 p.m. gave one version (i.e. not a single word was mentioned on the question of “deployment of manpower to vaccination centres”, thus leaving a gap as to whether the scopes of work of the “departmental grades” and the “general grades” would overstep each other and become confusing), whereas the Inland Revenue Department’s verbal supplementary notification by telephone on 20 April 2021 gave another (i.e. it was clearly and explicitly recorded that Wong’s question on “deployment of manpower to vaccination centres” had been determined by the Inland Revenue Department as “no comment” and “hypothetical question and therefore could not be answered”). On the one hand, this reflects that the Inland Revenue Department’s written reply of 25 February 2021 at 5:15 p.m. gave irrelevant answers to the questions, was incomplete and in default of providing an appropriate response, and did not include the response that should have been included earlier. On the other hand, it reflects that the Inland Revenue Department neglected or was unwilling to communicate with its employed staff candidly.

If the 7 hours which were frozen were returned without being forfeited, or if the contents stated in the verbal supplementary notification by telephone on 20 April 2021 were incorporated earlier into the Inland Revenue Department’s letter at 5:15 p.m. on 25 February 2021, the above-mentioned one-sided point of fact of “failure to sign and return the declaration by the stipulated deadline (i.e. 25 February 2021)” would not have occurred.

3.  No dispute between expiring and already expired

I consider that the deadline for signing the oath has not expired but the Inland Revenue Department and the Civil Service Bureau do not agree. By the same token, the Inland Revenue Department and the Civil Service Bureau consider that it has already expired but I do not agree either. Perhaps we can only leave it to a body which has authority on the common law and the judicial jurisdiction to decide on the merits (for example, let the Labour Department conduct an employment mediation and give advice on employment relationship). When the former Secretary for the Civil Service, Mr. WONG Wing Ping Joseph, attended the Legislative Council meeting on 13 December 2000 (Wednesday), he mentioned that although the Employment Ordinance (Cap. 57 of the Laws of Hong Kong) did not apply to government employees, he pointed out that “the Government’s policy is that the employment terms of government employees should be no less favourable than those provided for under the Employment Ordinance” and also pointed out that “at present, when handling complaints from government employees regarding their employment terms, government departments will consult the Labour Department and seek legal advice on issues relating to provisions under the Employment Ordinance... or contractual terms. This ensures that all employment terms are no less than favourable than the provisions under the Employment Ordinance”. I am therefore of the view that, by letting the Labour Department provide advice on employment relationship, it will help ensure that the variations of my conditions of employment, de facto variations, or even the consolidation and conversion of the implied obligation that constituted a condition of employment under the Basic Law into a written obligation, or whether the triggering of required retirement is mature are no less favourable than those provided for under the Employment Ordinance, as if the protection afforded to employees of private organisations.

Even though, as the Civil Service Bureau pointed out, there has always been no change in the deadline for signing the oath, the Inland Revenue Department’s letter in relation to “Oath-taking / Declaration Requirement” dated 28 January 2021 (a) did not expressly provide that employed staff members cannot make enquiry or seek information, (b) also did not preclude the reservation of the right and duty to sign and return the oath by making a written report, and (c) also did not preclude the freezing and lagging behind of deadline for signing the oath as dictated by environmental factors (e.g. black rainstorm signal, typhoon signal no. 8). Rights come with responsibilities. The rights and responsibilities of oath-taking should co-exist. Although your esteemed Bureau is of the opinion that the deadline for signing the oath is 25 February 2021 (5:30 p.m. end of the office hours) and that the deadline was not proactively and expressly agreed by the Inland Revenue Department/the Government to be postponed/changed, this deadline for signing the oath is only applicable to employed staff members under ordinary circumstances. However, due to the emergence of the written report dated 25 February 2021 at 10:00 a.m. and the circumstantial factors (i.e. the communication between the employer and employee to clarify concerns has not yet been completed), the general deadline is not applicable. In circumstances which were involuntary on the parts of both the Inland Revenue Department as the employer and myself as the employee, the deadline for signing the oath has automatically become frozen and lagged behind, which is really an individual circumstance. There is no conflict between the employer’s lack of proactive express agreement to postpone/change the deadline and the deadline being lagged behind due to individual circumstances. I am of the view that the fact that deadline to sign the oath automatically went into a frozen state and lagged behind as dictated by individual circumstances was not the fault of either party. If the employer side allows/agrees to open up a window of the deadline for signing the oath so as to return to me the 7 hours of the remaining period to which I was originally entitled, it would really be a reasonable move, which will surely reflect that the departments of the HKSAR Government are observant and meticulous.

Regardless of how the Civil Service’s internal procedures, the procedures of the Public Service Commission, the internal appeal procedures to the Chief Executive or even judicial proceedings in the future will determine on whether the deadline for signing the oath has entered into a frozen state and lagged behind, there is no way to change the circumstantial factual basis and the state of mind (state of mind) that I have adopted at the moment of the end of the office hours of 25 February 2021 at 5:30 p.m. which gave rise to a continuing effect (continuing effect) of my report of “unable to sign for the time being”, not altered even if there was an honest mistake (honest mistake).

4.  The dispute between substance and form

As the saying goes, substance is over form (substance over form), an oath-taking document is only one of the vehicles (vehicle) to prove an employed staff member’s acceptance of the vow in the oath. The presence of a symptom (symptom) does not necessarily equate to sickness. The signing of the oath-taking document is only a formality, the acceptance of the vow in the oath is the substance. Your esteemed Bureau is urged to clearly understand the requirement of the Basic Law and the Civil Service Code – whether it is the acceptance of the vow in the oath or the acceptance of the vow in the oath which must be completed by signing and returning the oath-taking document, and do not put the cart before the horse. As reported by the media, there were cases in the past where members of the Legislative Council had accepted the vow in the oath but failed to sign and return the oath-taking document, but the Secretary General of the Legislative Council still regarded the completion of the acceptance of the vow in the oath by such members of the Legislative Council as valid. The mere symptom of the inexistence/incompleteness of a signed oath-taking document is not enough for the Inland Revenue Department, as the employer, to discharge its burden of proof to prove that I have neglected, refused to accept, or waived my right to sign and return the declaration, and it is even more difficult to reasonably prove and arrive at the grave and remote inferences such as “the consistent duty of civil servants, the lack of commitment to the core values of the civil service, affecting the good governance of the Government, affecting the society’s respect for and confidence in the civil service”, and so on.

In fact, I have, since my report at 10:00 a.m. on 25 February 2021 about being “unable to sign the declaration for the time being” in order to reserve my right to sign and return the oath, written to the Inland Revenue Department several times to communicate and clarify my concerns, to seek information and to follow up. This reflects that I have actively pursued the matter of taking the oath. In addition, I wrote to the Inland Revenue Department on 19 April 2021 to expressly and clearly indicate my willingness to continue to serve the HKSAR Government and the general public in accordance with the content of the vow in the oath. I also wrote to the Civil Service Bureau on 18 May 2021 to put forward a settlement proposal and undertook to, as required, sign and return the oath to the Inland Revenue Department, the Civil Service Bureau or a department designated by the employer side with the signature backdated to 25 February 2021, so as to satisfactorily resolve the matter. Your esteemed Bureau should absolutely not neglect to consider the following three matters of fact (a) the report and intention to reserve rights on 25 February 2021 at 10:00 a.m., (b) the clear intention on the 19 April 2021, and (c) the written undertaking on 18 May 2021 as evidence to prove that I have taken upon the acceptance of the vow in the oath as my duty before 25 February 2021. Regardless of whether the window for signing the declaration would be eventually allowed/agreed to open up and whether I would be given back the 7 hours of the remaining period to which I was originally entitled, it does not change the fact that I have, through the multiple rounds of correspondence, already accepted the declaration in writing by signing the letters. The signing and return of the oath-taking document have become a matter of formality and a matter of technicality which is to be remedied or dispensed with. Citing section 12 of the Order against an employed staff member who has accepted the vow in the oath is not in my view the legislative intent of section 12 of the Order. Section 12 of the Order should never have been invoked against me, and the conditions for its activation or trigger have never been mature.

5.  In Summary

My representations and ground of complaint remain to be that of “no factual basis, no procedural justice, resulting in a misunderstanding” and have not changed. I am silently waiting for the employer side’s allowance/agreement to open up a window for signing the oath and to return the 7 hours of remaining period to which I was originally entitled, and am waiting to make up for or be waived of the formality (formality) on the oath-taking document, so as to fulfill the report and intention to reserve rights at 10:00 a.m. on 25 February 2021, the clear intention on 19 April 2021, and the written undertaking on 18 May 2021. If your esteemed Bureau is minded not to allow/agree to the opening up of a window for the deadline for taking the oath or not to agree to let me make up for or to waive the formality on the oath-taking document, I look forward to your esteemed Bureau’s reply and the explanations of the logical rationale as soon as possible after the issuance of this letter.

38.  On 6 August 2021, the CSB wrote to the Applicant stating (in English translation):

We sent you a letter on 9 July 2021, responding to the contention in your representations submitted on 18 May and notifying you to make further representations regarding the Government requiring you to retire in the public interest pursuant to section 12 of the Public Service (Administration) Order (hereinafter referred to as “the Order”).

We wish to point out again that, the Inland Revenue Department’s letter to you dated 28 January 2021 and the subsequent reply letters of this Bureau dated 6 May and 9 July 2021 have stated on multiple occasions that the deadline for you to sign and return the declaration has always been 25 February 2021 and has not been changed. It was only in the morning of the deadline day of 25 February 2021 that you indicated to the Inland Revenue Department that you were unable to sign the declaration for that time being and raised questions at the same time. The Inland Revenue Department had immediately replied on the same day and made it clear that that day was the deadline for signing and returning the declaration. According to the Inland Revenue Department, the letter was sent to you at noon time on that day and you signed a reply slip to acknowledge the same. The Government has never agreed to extend the relevant deadline, nor has it endorsed the “Stop the Clock Principle” which you repeatedly alleged and your alleged “reasonable expectation” regarding the extension of the relevant deadline.

As you, without reasonable explanation, neglected, refused or failed to comply with the prescribed requirement to sign and return the declaration by the stipulated deadline, the Government has lost confidence in your suitability to continue discharging your duties as a public officer. Having considered your further representations dated 16 July 2021, we consider that you have not provided adequate grounds to justify a change in the Government’s proposal of requiring you to retire in the public interest pursuant to section 12 of the Order. In respect of your case, we have consulted the views of the Public Service Commission (“hereinafter referred to as the Commission”), which supports the Government’s proposal of requiring you to retire in the public interest (see Annex).

We will refer your case to the Secretary for the Civil Service for a decision on whether to require you to retire in the public interest pursuant to section 12 of the Order. If you intend to submit further representations before such decision is made, please send them to the undersigned within 7 calendar days from the date of issue of this letter (i.e. on or before 13 August), failing which this Bureau will deem you as not intending to make any representations. Representations which reach this Bureau after the deadline stipulated in this paragraph will not be accepted.

39.  By his response to the PSCS dated 12 August 2021, the Applicant first noted that the PSCS had not raised any new view, and that the work within the scope of duties of the PSCS had already come to an end for the time being. The letter then continued as follows (in English translation):

In continuation and maintenance of coherence of the three letters mentioned earlier, i.e. (1) the report and intention to reserve rights on 25 February 2021 at 10:00 a.m., (2) the clear intention on 19 April 2021 and (3) the written undertaking on 18 May 2021, it is now enclosed herewith, in duplicate, the oath-taking document in the prescribed format, which has been signed and dated 25 February 2021. As the maxim says, “a subsequent ratification is as good as a command at the beginning” (The maxim of equity: a subsequent ratification has a retrospective effect, and is equivalent to a prior command). A copy of the oath-taking document is for filing with the Civil Service Bureau and the other copy is for filing with the Inland Revenue Department to prove that I have, by the deadline, complied with the employer side’s requirement for oath-taking on 28 January 2021 and accepted the vow in the oath in the prescribed format.

Thank you for referring the case to the Secretary for the Civil Service, who is responsible for designing policy agenda and being accountable for policy-making, so that Mr. Secretary is in the position to consider, from the perspectives of the design of policy agenda and political thinking, the crux of this suspected case, the gravity of the matter and the question of my retention. The following representations and words from the bottom of my heart are hereby raised to the Secretary:

1. In any event, I would like to express my gratitude to the teams of the Civil Service Bureau and the Inland Revenue Department for their work on this suspected case.

2. Since the Civil Service Bureau has so far simply refused to accept my reasonable explanations, but did not set out the logical rationale behind, for example, why the Inland Revenue Department did not include the response that should have been included earlier, and did not mention a word about Wong’s question on “deployment of manpower to vaccination centres”, had left a gap as to whether the scopes of work of the “departmental grades” and the “general grades” would overstep each other and become confusing. However, in the eyes of the Civil Service Bureau, this was still considered as an “appropriate response”. The only conclusion I can reach is that the Commissioner of Inland Revenue, the Permanent Secretary for the Civil Service or the employer side has unreasonably refused to accept my reasonable explanations. On the face of it, the employer side has also been unable to demonstrate the highest degree of good faith (good faith) that should be demonstrated in the exercise of its power.

3. As of now, the Inland Revenue Department, the Civil Service Bureau or the employer side has not reached a consensus with me regarding the facts (i.e. the 7 discrepancies mentioned in my letter dated 16 July 2021), and I am still in the opinion that this suspected case is purely a misunderstanding. Although the Permanent Secretary and the Public Service Commission have tried to ensure that the innovation of section 12 of the Order was not flawed in terms of administrative thinking (the effectiveness of which has not yet been verified), it does not mean that it is necessary or worthwhile for Mr. Secretary to follow the Permanent Secretary’s advice in terms of political thinking.

4. As is known to all, neither the Basic Law, statutory enactments, uncodified laws nor even Legislative Council has stipulated a statutory date for the employer side to put an end to the obligation on the part of a staff member to accept the vow in the oath, or to put an end to the obligation to sign and return the oath-taking documents. The date of 25 February 2021 is not an iron-clad deadline, and Mr. Secretary absolutely and appropriately has the power to, based on individual circumstances, autonomously allow an employed staff member to make up for the formalities or waive the formalities on the oath-taking document. The requirement in the employer side’s letter dated 28 January 2021 on oath-taking in accordance with the Basic Law and the Civil Service Code replied solely on the contractual negotiation between the employer and the employee in deriving the relevant deadline. Insertions and deletions of employment contracts and written reinforcement thereof are a matter of negotiation of the two parties. I have in the past repeatedly expressed my disagreement with the deadline of 25 February 2021, which was of contractual nature, as a reasonable final deadline, and I further took the view that the employer side must fine-tune the reasonable deadline for individual employees based on their respective actual or unforeseen circumstances, or agree that the deadline could be automatically frozen and postponed due to circumstantial factors. After I accepted the vow in the oath by the deadline of 25 February 2021, there was an incompletion of documents as a result of miscommunication between both parties, and neither side was at fault. There is no contradiction, whether as a matter of legal reasoning or human discretion [translation note: the original phrase is 人情 “renqing”], for the formalities on the oath-taking document to be made up for or to be waived. On the contrary, it would be unreasonable and unsympathetic for the employer’s side not to accept the make-up of or to waive the formalities on the oath-taking document.

5. In view of the fact that I have already treated the acceptance of the vow in the oath as my duty by the deadline of 25 February 2021, and I have already accepted the vow in the oath in writing by the letter correspondence, and I have further signed and returned the oath-taking document dated 25 February 2021 in continuation and fulfilment of my previous representations and intention to reserve rights, clear intention and written undertakings, the grave presumptions of purportedly affecting the good governance of the Government and the respect and confidence of the public in the Civil Service, and so on, have long been untenable. They are neither statutory presumptions nor iron-clad presumptions (rebuttable presumption). I am deeply apologetic for causing the administrative inconvenience to your esteemed Bureau as a result of this miscommunication.

6. Regarding the requirement for oath-taking in the letter of the Civil Service Bureau dated 28 January 2021, having examined my own conscience, I have made every effort (best effort) to comply with the requirement and I can live up to my conscience. In the middle of the process, there was a minor episode of miscommunication that caused no great harm. Facing the policy-based response from the Inland Revenue Department employer’s side, it was indeed unforeseeable and uncontrollable for me, and I felt extremely helpless and that is was within the scope of force majeure (force majeure).

7. The Permanent Secretary for the Civil Service, the Commissioner of Inland Revenue and I are all members of the civil service. We have been doing our best to, in accordance with the Basic Law and the content of the vow in the oath, serve the HKSAR Government and the general public for more than 20 years, and there is no ground to show that we will in the future fail to act in accordance with the content of the vow in the oath. I dare to ask: “We are originated from the same root, why are we so anxious to harm each other?”

8. My father died of a serious illness many years ago. My elderly mother is now aged 69 years and has been relying on my meager income to make ends meet. Therefore, I very much need and very much treasure my present job at the Inland Revenue Department. My mother and my family have repeatedly criticized me for getting into the present predicament of being misinterpreted and being wrongly accused where I have throughout the years been plainly loyal to the Basic Law and the Civil Service Code and loving to serve the HKSAR Government and the public in accordance with the Basic Law and the content of the vow in the oath. Mr. Secretary’s decision will affect at least the fates of two people, me and my mother, or a few more.

9. If the Secretary for the Civil Service, on behalf of the Chief Executive, decides to invoke section 12 of the Order to require me to retire, this action would amount to an act of “wrongly killing the innocent person”. I hope that Mr. Secretary could be merciful and allow me to fulfill my filial duty, and make a decision which is in line with the law, reason and compassion, so that I can reinstated as soon as possible. Thank you.

40.  As the letter states:

(1)  The Applicant was of the view that the Commissioner of Inland Revenue and the PSCS had so far unreasonably refused to accept his own reasonable explanations.

(2)  The case was purely a misunderstanding.

(3)  The date of 25 February 2021 was not an iron-clad deadline, and the Applicant had consistently refused to agree that it was a reasonable final deadline.

(4)  There had been a miscommunication, for which the Applicant apologised, and which had caused no harm.

(5)  The Applicant had previously complied with the duties underpinning the Declaration.

(6)  There were compassionate reasons why the Applicant’s interdiction should cease and he should be reinstated.

(7)  The Applicant enclosed with the letter, in duplicate, the oath-taking document in the prescribed format, which had been signed and dated 25 February 2021 – though it seems obvious that it was not in fact signed or dated on that day, but had instead been back-dated.

(8)  Nevertheless, by doing so, the Applicant was asserting that he had complied with the Requirement by the deadline originally set.

41.  The matter then fell for internal CSB consideration. By an internal Minute M.12 (“M.12”), dated 24 August 2021, the Principal Assistant Secretary (Conduct and Discipline) sought approval as to the recommendation on officers for retirement in the public interest. M.12 actually related to two officers, but – insofar as it related to the Applicant – the material part of M.12 read as follows:

[1.] This minute seeks your approval, under the authority delegated by the Chief Executive (“CE”), to retire [the Applicant] … in the public interest under section 12 of the Public Service (Administration) Order (“PS(A)O”), on the grounds that the Government has lost confidence in their suitability to continue discharging their duties as public officers as a result of their neglect, refusal or failure to duly sign the declaration without reasonable explanation. A table summarising the particulars of the offices is at Annex A.

2. In recommending the two cases for your approval, we have examined the circumstances of each case and come up with our assessment, gone through the necessary steps of inviting representations from the officers concerned, sought the advice of the Public Service Commission and invited last word from them. Details of the cases are set out in the case proforma at Annex B. Both officers provided representations and last word.

3. Subject to your approval of retiring the officers in the public interest under section 12 of PS(A)O, we will inform them of your decision. …

42.  Annex A provided the details of the Applicant’s rank, pay scale, retirement scheme, age, years of service etc, and that he had made representations including in response to last word letter.

43.  Annex B was a ‘step-by-step’ proforma relating to the processing of the section 12 consideration. The proforma described in narrative form what had happened at each step, and annexed the relevant correspondence sent to and by the Applicant at each step (apparently with a hyperlink to a copy of those documents). Amongst the steps, it was recorded that the recommendation for retirement and the public interest had been supported by the Public Service Commission. Further, after sitting out and annexing the last word provided by the Applicant, it was noted that:

We consider that he did not put forward new and reasonable grounds for the Government not to take action under section 12 of PS(A)O against the officer for his failure to return a signed declaration by the stipulated deadline of 25.2.2021.

44.  M.12 was passed up the chain of command, as is shown by the comments hand written upon it:

(1)  First, the Deputy Secretary, DS(3), wrote “Supported” against the date “24/8”.

(2)  Second, the PSCS wrote against the date “26/8”.

Supported. The arguments advanced by both officers appeared to me to be false arguments. Furthermore, the fact that Mr Wong only put forth his questions to the departmental management on the last day for returning signed declarations shows his insincerity in getting answers for the questions.

(3)  Finally, the SCS wrote “Approved” against the date “26/8”.

45.  It is the PSCS’s comments – in the references to “false arguments” and “insincerity” – which are the focus of one of the proposed grounds of judicial review, namely Ground 3 (see below).

D.  The Decision

46.  The Decision was notified to the Applicant by letter dated 30 August 2021, which read (in English translation):

It is hereby informed that the Secretary for the Civil Service, in exercise of the authority delegated to him by the Chief Executive and on the advice of the Public Service Commission, has directed that you be retired in the public interest under section 12 of the Public Service (Administration) Order (hereinafter referred to as “the Order”).

While retirement in the public interest under Section 12 of the Order is not a form of disciplinary punishment, it will result in termination of your service by the Government. Upon termination of your service, you will be granted a deferred pension which will be payable on your attaining the prescribed retirement age. Calculation of your pension as prescribed in the Pensions Benefit Ordinance (Cap. 99) will be based on your highest pensionable emoluments, length of pensionable service (up to the date of termination of your service) and the relevant pension factor. Moreover, you will also be granted your earned leave.

You shall commence pre-retirement leave on the day following your receipt of this letter. The Inland Revenue Department will inform you separately of the exact date of your retirement.

47.  Also by letter dated 30 August 2021, the Commissioner of Inland Revenue informed the Applicant that he would commence his pre-retirement leave from 31 August 2021 until 24 October 2021, and the effective date of his retirement would be 25 October 2021.

E.  Section 12 of the PS(A)O

48.  Section 12 of the PS(A)O is in the following material terms:

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

(2) The Chief Executive may, upon a consideration of the report and of any representation submitted under subsection (1), require the officer to retire from the service, if he is of the opinion that, having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer’s service is desirable in the public interest and the officer’s service shall accordingly terminate on such date as the Chief Executive may specify.

(3) …

(4) Where an officer is required to retire under this section, he may be granted retirement benefits.

49.  For present purposes, the focus is on section 12(1) and section 12(2).

50.  It may also be noted that the power given to the Chief Executive under section 12 may be delegated to the SCS.

F.  Grounds of Review

51.  In the summary of them as set out by Mr Wong, the grounds of review advanced by the Applicant are that:

(1)  Ground 1: The Decision is irrational in the public law sense, in that (a) the Applicant had already submitted the Declaration duly signed by him, and there is no or no good reason not to accept the signed Declaration, and/or (b) the Decision constituted a punishment that is “altogether excessive and out of proportion to the occasion”.

(2)  Ground 2: The Decision is tainted with procedural impropriety, in that the SCS failed to give any or any adequate reasons for directing the Applicant to retire in the public interest.

(3)  Ground 3: The Decision is tainted with procedural impropriety, in that the Applicant was not given any opportunity to respond to certain documents and/or representations.

(4)  Ground 4: The Decision is illegal, in the sense that the Secretary failed to take into account relevant considerations as required by section 12(2) of the PS(A)O, namely: (a) “conditions of the public service”, (b) “the usefulness of” the Applicant to the public service, and/or (c) “other circumstances of the case” (including the compassionate grounds put forward by the Applicant in his representations dated 12 August 2021).

52.  I can address each Ground in turn.

G.  Ground 1: Irrationality

53.  Ground 1 has two limbs: (1) no or no good reason not to accept the signed Declaration, and (2) excessive and disproportionate punishment.

G.1  Limb 1

54.  As to the first limb, Mr Wong submits that there was no good reason for the SCS not to accept the signed Declaration eventually submitted, because:

(1)  The principal focus should be on the purpose of introducing the Requirement to sign the Declaration, and the reason for the delay in submitting the signed Declaration.

(2)  The twin purposes, of (a) enhancing civil servants’ awareness of the expectations and responsibilities and (b) giving an open acknowledgement and genuine manifestation of that, have been served by the Applicant’s provision of a duly signed Declaration, albeit with some delay.

(3)  The Applicant can be seen objectively to have made and demonstrated a genuine and open acknowledgement of the acceptance of his responsibilities: see Woo Tak Yan v Secretary for the Civil Service [2022] HKCFI 1465 at §61, upheld on appeal, [2022] HKCA 1624.

(4)  The Applicant used his genuine signature – in contrast with the Woo Tak Yan case – and delay per se should not be a good reason not to accept the Declaration, even if delay can be a factor to be taken into account.

(5)  The Applicant had engaged in genuine enquiries, which was the sole reason for his delay (though Mr Wong also fairly acknowledged some “stubbornness” on the part of the Applicant in his correspondence).

(6)  The Applicant never evinced an intention not to accept the relevant responsibilities and expectations on civil servants, but rather expressly accepted them.

55.  It may be noted that Mr Wong has somewhat steered away from the Applicant’s contemporaneous stance that the deadline for him duly to file the Declaration had not expired, because his enquiries had somehow ‘stopped the clock’. With respect, the Applicant’s view was plainly erroneous, as was made clear to him on various occasions in the correspondence. The deadline for the Applicant to sign and return the Declaration was always 25 February 2021, and no agreement to extend the deadline in his case was ever made. In fact, even the letter sent on 25 February 2021 in response to the Applicant’s earlier questions made clear that the Applicant should file the Declaration on time, that day.

56.  Further, it seems to me that Mr Wong’s analysis starts from the wrong point. The correct starting point is to consider, as a straightforward question of fact, whether the Applicant had duly signed and returned the Declaration by the stipulated deadline. Plainly, as a matter of fact, he had not. As I have already indicated, it does not matter that the Applicant may not have indicated his flat refusal to do so – by his use of the words “for the time being” – as he had simply neglected or failed to do so.

57.  Therefore, Ms Chan is correct when she submits that, as provided in Circular 2/2021 at §7, the only window that might have been open to the Applicant was that of providing a “reasonable excuse”. Hence, the suggestion that the reason for the SCS not to accept the Applicant’s back-dated Declaration provided on 12 August 2021 was delay per se is both wrong and misplaced. What the SCS was required to consider was whether the Applicant, who had neglected, refused or failed to provide a duly signed Declaration before the deadline, had subsequently provided a reasonable excuse for that neglect, refusal or failure.

58.  As seems to be common ground between Mr Wong and Ms Chan, that gives rise to consideration of whether the Applicant’s explanation given in his letters and representations would objectively amount to or be taken as a “reasonable excuse”. In that light, and taking into account Ms Chan’s submissions, I think attention can be drawn to the following matters:

(1)  Ample time of four weeks had been given to the Applicant to read Circular 2/2021, together with its explanatory notes.

(2)  The Applicant would have known – in fact, did know – of the potential and serious consequence of any failure to duly sign and return the Declaration in the prescribed manner by the stipulated deadline.

(3)  That serious consequence was of potential termination of service.

(4)  The Applicant made no enquiries until 10:00am on the last day for compliance, just a few hours before the deadline.

(5)  Even as he did so, he made handwritten comments on the Declaration form itself – apparently requiring him to have to request a new form when he later decided to sign one and submit it.

(6)  The handwritten comments were next to the asterisk, which led the reader to the note that any variation, addition or deletion to/of the declaration would render it null and void.

(7)  The Applicant’s first enquiry questioned, if not actually challenged, the need for the Requirement and for him to give the Declaration at all and/or by the stipulated deadline.

(8)  The Applicant appears to have unilaterally imposed a condition precedent to his compliance with the Requirement that he should receive a point-by-point reply to his enquiries.

(9)  The Applicant also continued to question the necessity of the Declaration in his case, with his “substance over form” protest in, for example, his 16 July 2021 letter to the CSB.

(10)  The Applicant also seemed to treat the Requirement as negotiable, so that his case might be “settled” by options including waiver of the formalities of the Requirement, and payment of a late submission fee.

59.  Therefore, in light of those points and the content of the repetitive correspondence, there is force in Ms Chan’s submission that there is an illogicality in the idea that the Applicant had been engaging in genuine enquiries, or that there had been merely miscommunication or misinterpretation. Further, as Ms Chan also submits, accepting that the Applicant had shown “stubbornness” – in my view, a rather euphemistic take on the Applicant’s correspondence – does not improve his case as to the genuineness of his enquiries or that he had taken the Requirement seriously.

60.  Further, as is also the case with other Grounds (see below), the question posed by the first limb of Ground 1 as formulated is something of a misdirection, or raises a ‘straw man’. The formulated question is whether there was a good reason not to accept the signed Declaration when it was ultimately provided, almost 6 months after the deadline. But that is not the correct question, even if the very late provision of a Declaration might somehow have been taken into account. The correct question – and the question necessarily considered by the SCS – was whether the Applicant had provided a reasonable excuse for his failure to meet the Requirement by making a duly signed Declaration filed by the stipulated deadline. On the facts, it is not arguably irrational in the public law sense for the SCS to have taken the view that the Applicant had failed to provide a reasonable excuse, even if the Applicant had much later (and only with his last word representations) offered a back-dated Declaration.

61.  I see no arguable irrationality on the first limb of Ground 1.

G.2  Limb 2

62.  As to the second limb of Ground 1, Mr Wong submits that the Decision constituted a punishment that is “altogether excessive and out of proportion to the occasion”, a phrase taken from an earlier English decision and adopted in Hong Kong in Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679 at §52. In that regard, and by reference to a passage from ‘De Smith, Woolf and Jowell’s Principles of Judicial Review’, Mr Wong submits that the focus of attention will be principally the impact of the decision upon the affected person. In other words, in the proportionality consideration, the outcome or end-product of the decision-making process will be assessed, rather than the way the decision was reached.

63.  There is a side issue as to whether retirement and the public interest is properly to be regarded as a “punishment”. The short answer to this is to be found in section 2 of the PS(A)O, which expressly set out that “punishment … does not include retirement in the public interest under section 12”. I also note that in various letters sent by the CSB, it was clearly stated that retirement in the public interest under section 12 was not a formal disciplinary punishment, and the Applicant would be granted a deferred pension calculated in accordance with the relevant statute.

64.  Nevertheless, Mr Wong points to the fact that section 12 is to be found within Part III of the PS(A)O, which is headed “Dismissal, suspension and discipline”, and which begins with section 5 which has the same heading. Section 5 provides that:

Subject to article 48(5) of the Basic Law, the Chief Executive may by virtue of article 48(7) of the Basic Law, upon sufficient cause to him appearing, dismiss or suspend from the exercise of his office any public servant or take such other disciplinary action, in accordance with this Order and regulations as may seem to him desirable.

65.  Mr Wong also refers to section 7, which provides that sections 9 to 18 – hence, including section 12 – shall apply to Category A Officers (of which the Applicant is one). So, Mr Wong submits, even if retirement in the public interest is not a “punishment” it is “other disciplinary action”, giving rise to a form of disciplinary consequence.

66.  Though I do not think it necessary finally to determine the point for present purposes, I tend to agree that retirement in the public interest is some form of disciplinary action. It is analogous to termination of a contract of employment for cause, and the process of representations identified in section 12 is the kind of process one might expect when a person faces some disciplinary action. But, as seen below, proportionality questions are subsumed under the traditional headings of the law on judicial review, the relevant heading here being irrationality. The focus should be on whether the Decision was irrational in the public law sense, not whether the Decision was the result of some disciplinary action.

67.  Mr Wong submits that the excessive and disproportionate punishment or impact or end-product of the Decision is reflected from the facts that:

(1)  The relevant duties and responsibilities of civil servants contained in the Declaration have always been in place, and the Declaration is nothing more than an outward manifestation of the commitment to abide by those duties and responsibilities.

(2)  The Applicant had given long-term civil service of 25 years, without any previous record or allegation of failing to abide by such duties and responsibilities.

(3)  The Applicant did eventually submit the Declaration duly signed by himself.

(4)  The Applicant was aged 45 at the time and is now aged 47, whereas his original retirement age would have been 60.

(5)  There were compassionate grounds put forward by the Applicant in his last word representations.

68.  As to the first point, it might be asked why the Applicant had any hesitation to sign the Declaration which he himself has sought to emphasise merely reflected the duties already owed, and with which he had faithfully complied over the previous 25 years.

69.  However, it is important also to put the phrase adopted in the Chu Ping Tak case its proper context. First, the case was dealing with the punishment or sentencing decision arising in police disciplinary proceedings, where there were the various levels and forms of punishment open to the Commissioner. Secondly, DHCJ Andrew Cheung (as the Chief Justice then was) held (at §49) that the doctrine of proportionality should be subsumed under the traditional headings of the law on judicial review. Thirdly, he pointed out (at §50) that in any event judicial restraint must be exercised, where the Court is playing a supervisory role and not acting in an appellate role as such. There is no ground for intervention in a sentence or punishment unless it is so out of proportion to the offence in question as to be perverse or unduly oppressive. Lastly, on the facts of the case, although it could be argued that the punishment meted out was severe and even on the high side, bearing in mind the various options, the eventual award was not so disproportionate to the offence in question as to be perverse.

70.  Anyway, it seems to me that the facts and circumstances of the present case are fundamentally different from the Chu Ping Tak case. First, the Circular 2/2021 spelt out the consequence of a neglect, refusal or failure to duly sign and return the Declaration by the stipulated deadline without reasonable excuse. Because that failure would be taken to reflect the officer’s refusal to acknowledge, accept and discharge the required duties and to show a serious lack of commitment to adhere to the core values of the civil service, which underpin good governance and help the civil service gain and retain the respect and confidence of the public, that would put in serious doubt the commitment of the officer to adhere to the necessary core values. On that basis, it was made clear that the Government would initiate action to terminate the service of an officer who neglects, refuses or fails to duly sign and return the Declaration.

71.  Put shortly, the Applicant had been informed that the consequence of a neglect, refusal or failure duly to sign and return the Declaration by the stipulated deadline without reasonable excuse would be the likely initiation of action to terminate his service. There was no range of potential consequences identified. The decision to be made as regards the officer concerned was expressly identified as “the continuous employment or otherwise”.

72.  The one likely consequence identified seems to me to have some logic. Though this matter arises out of the public sector, a comparison might be drawn with the private sector. If a private sector employer forms the view that an employee has demonstrated a serious lack of commitment to adhere to the core values of the employment, it might reasonably be expected that the employer would act to terminate the employee’s employment. In essence, the Government had significant doubt as to the Applicant’s ability and commitment to follow the central tenets of service as a civil servant, and the logical step to take in those circumstances would be terminating that service – rather than some lesser step as might be applicable in rather different circumstances.

73.  I also accept Ms Chan’s submission that there is a flavour that the Applicant is asking the Court to consider the mitigation points, including his long service, previous blemish-free record and compassionate grounds, as though this judicial review were an appeal on the merits. As is trite and the Chu Ping Tak also makes plain, it is not. Instead, the Applicant must assert irrationality, involving the high standard of Wednesbury unreasonableness.

74.  It does not seem to me to be arguably irrational for the SCS to have come to the view that the Applicant had no “reasonable excuse” for his failure duly to sign and return the Declaration on before the deadline, and then for the pre-indicated consequence of the failure to have been the consequence ultimately imposed.

75.  Ground 1 as a whole is not reasonably arguable with any realistic prospect of success.

H.  Ground 2: Procedural Impropriety (reasons)

76.  Under Ground 2, it is said that there was procedural impropriety in the SCS failing to give any or any adequate reasons for directing the Applicant to retire in the public interest.

77.  Mr Wong submits that where the penalty imposed on the Applicant not only threatened his continued service at his attained rank – see Rowse v Secretary for Civil Service [2008] 5 HKLRD 217 at § 239(e) – but resulted in termination of his service, adequate reasons should have been given. Mr Wong submits that they were not, pointing to: (1) the Decision letter dated 30 August 2021 merely informed the Applicant of the Decision without giving any reasons at all; (2) the PSCS’s previous letter dated 6 August 2021 invited the Applicant to submit further representations, but the SCS failed to address or give reasons why the Decision had been arrived at despite those representations; and (3) the SCS failed to give any reason why she was “of the opinion that, having regard to conditions of the public service, the usefulness of the [Applicant] thereto and all other circumstances of the case, the termination of the [Applicant’s] services desirable in the public interest”, which is a pre-condition for exercising the power under section 12(2) of the PS(A)O.

78.  Ms Chan submits that there is no general duty to give reasons for administrative decision, and even where reasons are given there is no rigid requirement of what constitutes sufficient reasons, which will depend on the context of the decision.

79.  Of course, 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 enables a supervisory Court in judicial review better to assess the legality of a decision under challenge. The courts are entitled to expect the answer to be sufficiently clear from the evidence before it, without having to resort to guesswork. But reasoning must be examined with reality and contextual common sense: see Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at §§97-98.

80.  Ms Chan refers to my own recent decision of Bimal Gyawali v Permanent Secretary for Security [2023] HKCFI 1982 at §44 where I summarised what I think are well-settled principles 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.

81.  Mr Wong refers to the decision of Hartmann J in Yim Shik Shi v The Secretary for the Civil Service (unreported, HCAL 128/2003, 28 May 2004) at §§30-35, in support of the proposition that the reasons given by the PSCS are not necessarily the reasons given by the SCS. But, those paragraphs are really focusing on the question in that case as to whether the decision-maker had considered at all the applicant’s representations before reaching the decision in that case. Hartmann J described the typical way in which recommendations are made and considered by officers in the CSB, but held that there could be no suggestion that the SCS did not make an independent decision on the papers placed before him. At §35, Hartmann J made the following comments, which also seem to have applicability in the present case:

In my judgment, the Civil Service Bureau was entitled to adopt a position. There would have been no complaint if it had adopted a position in favour of the applicant. Nor, in my opinion, can it be said that there was anything unlawful in the Civil Service Bureau’s view coming to the notice of the Secretary when the papers came before him for final decisions. Ministers of Government are entitled to be advised by those who served them. The law in that regard is clear. But such advice does not have to be followed. The Secretary had before him the representations of the applicant and the representations of his officers. It was for him to determine the issue.

82.  In passing, reference might also be made to §36 of the same judgment, where it was emphasised 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, unless they in totality can be seen to have destroyed the integrity of the entire process, do not go to prove that administrative process is rendered unlawful.

83.  In this case, the Decision letter provided to the Applicant must be read against the lengthy, far from succinct, exchange of correspondence (see above). To an extent, that correspondence was repetitive on both sides of the exchange. This is in part because the Applicant felt and expressed that not accepting his explanation was not reasonable, so he kept repeating it. But, the PSCS’s letter dated 6 May 2021 encapsulated the circumstances of the case, and stated clearly the reason for which the Government intended to initiate the section 12 action. In essence, it was because of the failure by the Applicant to comply with the Requirement within the stipulated deadline, and the Government had lost confidence in his abilities to discharge his duties as a public officer. The Applicant was invited to show cause why termination should not occur in his case. By the subsequent letter dated 9 July 2021, the PSCS repeated the reason and provided adverse comments on the Applicant’s representations made so far, including again to scotch the Applicant’s suggestion that the deadline had somehow been extended for him.

84.  I agree with Ms Chan that, against the lengthy correspondence, the Applicant could not be left in any doubt as to the reason for the Decision – namely that he had failed to duly sign and return the Declaration within the stipulated deadline, and had failed to provide a reasonable explanation, so that the Government had lost confidence in him.

85.  Ground 2 is not reasonably arguable with any realistic prospect of success.

I.  Ground 3: Procedural Impropriety (representation opportunity)

86.  By Ground 3, the Applicant says the Decision is tainted with procedural impropriety in that he was not given opportunity to respond to certain documents and/or representations. Three matters were put forward as the “undisclosed documents”, being:

(1)  the report from the IRD to the CSB dated 9 April 2021;

(2)  the memo from the CSB to the Public Service Commission dated 22 July 2021; and

(3)  the internal minutes submitted by the CSB to the SCS on or about 24 August 2021 (including the handwritten comments).

87.  Mr Wong submits that the appropriate applicable principle is to be found in Chan Tak Shing v Chief Executive of the HKSAR [1999] 2 HKLRD at 393C-G, where it was emphasised that under the section 12 procedure the officer must have the last word, and if in fact the officer was not given any opportunity to consider the submission in reply, he did not have the last word. Hence, the inescapable conclusion would be that was unfair, and it matters not that the undisclosed document contained no new ground of complaint against the officer or no new facts. Nor would it matter that the officer in fact knew perfectly well what was the case made against him. Mr Wong submits that this case is on all fours with the Chan Tak Shing case.

88.  Of the three stated undisclosed documents, the focus in argument was on the last – and in particular on the handwritten comment of the PSCS (see above). Mr Wong submits that the allegations of “false argument” and “insincerity” were serious attacks on the Applicant’s credibility and integrity, which the SCS had apparently considered before endorsing her own handwritten note of “Approved” above those comments. Where the Applicant had not been given the opportunity to deal with such serious attacks, he had not had the last word and the inescapable conclusion was that there had been unfairness.

89.  However, I agree with Ms Chan that the legal approach to be taken is the two-stage approach identified in the Chu Ping Tak case at §§59-60 – as was later endorsed by the Court of Appeal in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653. First, it must be shown that the document in question ought to have been disclosed. Secondly, even if it ought to have been disclosed, the Court would proceed to assess whether or not the non-disclosure produced any or any substantial prejudice to the Applicant. In the absence of prejudice, the Court would likely refuse to grant discretionary relief.

90.  This is another way of identifying that what fairness demands will be dependent on the particular context of the case. As is often stated, in law context is everything. The relevant context in this case is that the Applicant should have had a reasonable opportunity to know about and respond to adverse materials received by and relied on by the decision-maker, and for that purpose should have access to adverse material to which he otherwise had no access. But, the details of disclosure required to meet the standard of fairness were to enable the Applicant to make meaningful and focused representations on the adverse materials and allegations contained in those materials.

91.  In my view, the Applicant’s complaint in Ground 3 fails at the first stage. As to the first two suggested “undisclosed documents”, I do not see why they ought to have been disclosed when the substance of them was disclosed in the exchange of correspondence between the Applicant, the Commissioner of Inland Revenue and the CSB. In any event, the first document was prior to the CSB initiating the section 12 actions, and essentially only put that process in train. Similarly, the second document essentially dealt mostly with the Applicant’s own letters, and asked the Public Service Commission to give advice, which would be informed to the Applicant for his own further representation, which then occurred.

92.  Ms Chan is also correct, in my view, to identify that there is essentially no third-party source of material which should have been disclosed to the Applicant. Essentially the various documents contain materials or information provided by the Applicant himself, as to why he had a reasonable excuse for why his service should not be terminated, and CSB comments upon that, on which he was invited to make further representation.

93.  As to the M.12 minute, that seems to me to have been part of the internal decision-making process, following on from the opportunity given to the Applicant to have the last word (which he took in his 12 August 2021 representations). The handwritten comments of the PSCS were not adverse material in the relevant sense, and by those comments the PSCS was simply offering a view as to inferences or conclusions which might be drawn from the materials as a whole.

94.  It is common ground between Mr Wong and Ms Chan – and it is necessarily common ground for Mr Wong to be able to advance other aspects of the intended judicial review challenge – that the Decision was the decision of the SCS, independently reached by the SCS. Reference can be made here to the passages from the Yim Shik Shi case, traversed above. As already stated, the consideration for the SCS in this case was whether the Applicant had advanced a reasonable explanation for his failure to comply with providing a duly signed Declaration by the stipulated deadline, and if not whether that should result in the predicted likely consequence of termination.

95.  Even had I taken the view that there was an unfair failure to disclose documents or representations, I would nevertheless have formed the view that it did not produce any substantial prejudice to the Applicant whatsoever, and disclosure would not have made the slightest difference to the Applicant’s representations made. In this case that would lead inevitably to the exercise of discretion against the grant of any relief.

96.  Ground 3 is not reasonably arguable with any realistic prospect of success.

J.  Ground 4: Illegality

97.  Ground 4 asserts that the Decision was illegal, in the sense that the Director failed to take into account necessary and relevant considerations, as required by section 12(2) of the PS(A)O. Those considerations are: (1) the “conditions of the public service”; (2) “the usefulness of” the Applicant to the public service; and (3) “other circumstances of the case” (including the compassionate grounds put forward by the Applicant in his representations dated 12 August 2021).

98.  Mr Wong says that the Decision letter dated 30 August 2021 made no reference to any of those considerations. He further submits that there is merely a bare assertion in the evidence filed for the SCS that she came to the view, having taken all those matters into account, that termination of the Applicant’s service was desirable in the public interest.

99.  With respect, there is nothing in this Ground. The starting point is Circular 2/2021, which set out the background for the introduction of the Requirement, as well as identifying that the consequence of a neglect, refusal or failure to meet the Requirement would be the initiation of termination mechanisms under the PS(A)O. That would give rise to the ability of the officer – here, the Applicant – to make representations, which would be considered. From the evidence, it is clear that there was the step-by-step proforma, specifically created for handling non-compliance cases under the section 12 mechanism.

100.  The evidence in this case identifies a full, careful and detailed consideration of the Applicant’s position – with the benefit (if that is the right word) of the lengthy exchanges of correspondence, comments and representations.

101.  As to the particular section 12 considerations which Mr Wong suggests were missing: (1) it seems to me that the “conditions of the public service” were at the core of what underpinned the Requirement and necessary Declaration in the first place; (2) “the usefulness of” the Applicant to the public service was obviously in serious doubt if the view is taken that he had failed to comply with the Requirement, by failing to provide a duly signed Declaration within the stipulated deadline; and (3) there is no proper basis to think that the “other circumstances of the case” (including the compassionate grounds put forward by the Applicant in his representations dated 12 August 2021) were not taken into account by the SCS.

102.  Ground 4 does not raise any reasonable argument with any realistic prospect of success

K.  Conclusion

103.  In the circumstances, I refuse leave to apply for judicial review on all four Grounds. For the avoidance of doubt, I would also state that had I granted leave on any individual Ground, I would have refused the substantive application in that regard and/or refuse to grant any discretionary relief.

104.  I see no reason why the costs should not follow the event. Therefore, I order the SCS’s costs to be paid by the Applicant, to be taxed if not agreed. I also direct the Applicant’s own cost to be taxed in accordance with the Legal Aid Regulations.