劉孝軒 v. 消防處

HCAL 1550/2022

[2023] HKCFI 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1550 OF 2022

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D E C I S I O N

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A.  Introduction

1.  By a Form 86 filed on 20 December 2022, the Applicant sought leave to challenge a decision made by the Fire Services Department (“FSD”).

2.  The Form 86 is home-made and the decision identified as the proposed subject of challenge is (original in Chinese)

「撤回辭職申請的理據」

“the grounds for withdrawal of resignation”

3.  In the field for the relief sought, he said (original in Chinese):

b)  移審令

我認為他不批淮的理由不合理及沒有證據，以及他們拖延回覆我的撤回申請表

b)  writ of certiorari

I think their grounds for refusal are unreasonable and are without evidence. Moreover, there was a delay on their part in replying to my application for withdrawal.

4.  That sentence was also repeated in his supporting affirmation, with the characters “回覆” replaced by “回應” which does not result in any change in meaning. Nothing else was said in the affirmation. No documents were exhibited.

5.  Until recently, the only other document in the Court file was a letter written by the Applicant dated 21 December 2022 which was received by the Court the next day. The Applicant said (original in Chinese):

因申請法律援助需時，希望能暫緩司法覆核的時間。

Because it takes time to apply for legal aid, I hope that the Court can temporarily stay the judicial review.

6.  After about three months had lapsed, apparently the Applicant had not yet applied for legal aid, or the Court would have been notified by memorandum from the Director of Legal Aid in accordance with the usual practice.

7.  It seemed that the Applicant was half-hearted at best in pursuing this leave application. I saw no reason why the application should not be dealt with as soon as possible. I did not think the vague suggestion that there might be an application for legal aid, which led to the request for a stay of the proceedings, changed the position.

8.  In the circumstances, I considered and prepared a written decision on the materials then available. Notice was given to the Applicant that my Decision would be handed down on 30 March 2023.

9.  However, on 28 March 2023, the Court received further materials from the Applicant. They were in the form of a letter addressed to the Registrar, with various enclosures. That is not the correct way of seeking to place evidence before the Court, which should be on affirmation or affidavit with relevant exhibits attached. Nevertheless, in the exercise of my discretion, I considered the further materials, and I postponed the handing down of my Decision to be able take those materials into account.

10.  Having done so, this is my Decision.

B.  The Intended Challenge

11.  From the then very limited information as was originally provided by the Applicant, it seemed that the Applicant might have been an employee of the FSD, that he resigned at some point, but that he later on attempted to withdraw his resignation, which was not acceded to by his employer. The Applicant said the employer’s rejection of his withdrawal was based on unreasonable grounds and was unsupported by evidence. But he did not identify or particularize the grounds which he sought to impugn as unreasonable or unsupported by evidence. The Court had no means of knowing the basis of the Applicant’s complaint.

12.  Order 53 rule 3(2)(a) of the Rules of High Court mandates an applicant to state in the Form 86 the relief sought and the grounds on which it is sought. The Applicant had plainly failed to do so. This alone was sufficient to dismiss the application.

13.  As well as the fact that the application in the Form 86 did not set out any real matters as to any alleged public law breach, nor did it even set out any factual matters as might be put forward in support of an application for leave to apply for judicial review.

14.  Further, with the very limited facts provided to the Court, it seemed that the complaint relates to an employment dispute between the Applicant as the employee and the FSD as the employer. That seemed to me to be a private law matter which is not amenable to judicial review.

15.  In the further materials provided by the Applicant, it is confirmed that the Applicant was employed as a fireman in the FSD, that he had tendered his resignation, and that he had subsequently sought to withdraw his application, which withdrawal was refused.

16.  In my summary of them, the Applicant’s further letter and enclosed materials identified certain facts, and he made the following points:

(1)  The Applicant was appointed as a fireman on 6 July 2020. His terms of appointment were on probation for a period of three years, until 6 July 2023.

(2)  On 11 October 2022, the Applicant submitted a statement to his Station Commander with the subject “letter of resignation”.

(3)  On 26 October 2022, the Applicant submitted a statement to his Station Commander with the title “withdrawal of resignation”. In the statement he said that he applied for resignation on 11 October, but as his family is facing financial hardship and his father is at an advanced age, he wished to withdraw the resignation application.

(4)  There was a delay in handling his withdrawal application, until he received the rejection on 22 November 2022 (a period of 30 days). This was notwithstanding that the Applicant had been urging for a reply.

(5)  The rejection was unreasonable, without any explanation or evidence.

(6)  A termination of employment or contract by a Government department requires documents to prove that the employee is unsuitable and the contract should therefore be terminated.

(7)  The Applicant sought reconsideration of the withdrawal application by his further statement dated 22 November 2022. In it he said:

(a)  he had always wanted be a fireman;

(b)  except for the last two appraisals, he was consistently given ‘C’ grades for his performance;

(c)  he has completed 26 weeks of training, and it would take half a year or more to train up a new fireman to replace him;

(d)  he wished to continue to serve the FSD until retirement;

(e)  his father has health issues, and since his mother has passed away, he is the only person looking after the father;

(f)  he attended an interview for another job, but as the economy worsened he did not hear back;

(g)  his sudden resignation would cost him a paid job with which to care for his father;

(h)  he took someone’s word that there were better jobs elsewhere, so he lodged his resignation;

(i)  he then realised the economy was worsening as the other job offer never came;

(j)  did not know how important the fireman job was to him, but now cherishes it a lot;

(k)  he hopes that the application to withdraw the resignation would be reconsidered.

(8)  The Applicant’s demand for an explanation met no response. Even in a further communication dated 25 November 2022, there was no explanation in detail or evidence as proof.

(9)  The provisions under Civil Service Regulation 321(b) (“CSR 321(b)”) have been violated, because:

(a)  his work performance was good, in that he attained ‘C’ grade in his appraisal reports, which was higher than the standard level of fireman, he had normal performance in fire operations and the highest physical fitness test score;

(b)  if he were to resign, there will be less manpower in the operations team, and the vacancy cannot be filled immediately because a fireman needs to undergo training for half a year before he can work in an operations team;

(c)  there are compassionate grounds, in that his mother has passed away and his father has health problems that require the Applicant’s care and financial support.

17.  The Applicant did not provide a copy of CSR 321(b) itself, but he provided (part of) the ‘Guidelines on Processing Applications from non-directorate offices for Withdrawal of Notices of Resignation under CSR 321(b)’.

18.  The relevant Guideline provides as follows:

Application

The provision under CSR321(b) is applicable to the following non-directorate officers.

(a) serving officers who have tendered their notice of resignation.

(b) officers on pre-resignation leave.

It does not apply to officers who have already left the service on resignation.

Once approval is granted by the Head of Department/Grade to an officer under CSR 321(b), he will continue in his appointment as if the notice of resignation had not been given. If the officer subsequently wants to resign from the service, he should give the requisite notice again or payment in lieu of notice.

The delegated authority should be exercised by officers not below the level of Departmental Secretary.

Heads of Departments/Grades should report, where appropriate, all withdrawal of notices of resignation to the relevant authorities as quoted under CSR 320(6).

Criteria for approving applications under CSR 321(b)

In approving applications for withdrawal of notices of resignation under CSR 321(b), the key consideration is public interest e.g. recruitment/retention problems in respect of the grade in question. Other factors that should be taken into account include –

(a) the officer’s past performance and conduct has been satisfactory;

(b) uncommitted vacancies are available to accommodate the officer concerned;

(c) compassionate grounds e.g. financial hardship if the withdrawal is not approved;

(d) the change in circumstances surrounding the withdrawal is reasonable and beyond the officer’s control.

19.  Also included in the materials provided by the Applicant was a Memo dated 25 November 2022 from the Station Commander to the Applicant, with the FSD’s reply to the Applicant’s statements dated 22 November 2022, and two emails of the same date of a similar nature. The replies were as follows:

2.  You submitted on 11 October to the Station Commander a statement with the subject “Letter of resignation”. The Station Commander then reported your notice of resignation to the Department the following day (i.e. 12 October). Subsequently, the Station Commander received on 20 October letter acknowledging your notice of resignation from the Department to you dated 14 October, which was forwarded to you by the Station Commander on 23 October. On 26 October 2022 you submitted to the Station Commander a statement titled “Withdrawal of resignation” which the Station Commander reported immediately afterwards to the Department on the following day (i.e. 27 October).

3.  Regarding your withdrawal of resignation, the Department, upon careful examination and consideration of all relevant factors (including the grounds you raised for your withdrawal), issued a memorandum on 18 November, and in accordance with Civil Service Regulation 321(b), did not approve your withdrawal of resignation. The Station Commander thus informed you of the same on 22 November.

4.  Therefore, the allegation raised in the two statements submitted to the Station Commander and the two emails to the Department by you dated 22 November that there had been a delay in the Department’s handling of your withdrawal of resignation is inconsistent with the facts. In fact, the Station Commander explained to you in detail the course of the events as mentioned in paragraph (2) above during a meeting with you at Fu Tei Fire Station on 14 November. In conclusion, your reapplication to withdraw your notice of resignation is not accepted, and the Department maintains that your withdrawal of resignation is not approved.

C.  No Merit in Intended Challenge

20.  Notwithstanding the provision of further materials, the Applicant has still failed properly to identify any alleged public law failures on the part of the FSD. Doing my best with materials, it seems that the Applicant has three complaints: (1) the decision was unreasonable; (2) the decision was not explained; (3) the decision was not supported by proof or evidence.

21.  Merely asserting that a decision is “unreasonable” does not properly identify why it is unreasonable in the public law sense. In any event, I see no arguable basis for asserting unreasonableness in that public law sense. Whether or not to accept the withdrawal of resignation was a matter for the FSD, and the weighing of the various factors which it might take into account was also a matter for the FSD. There is no basis on the materials to suggest that the FSD failed to take into account the relevant considerations, and indeed the FSD’s response to the Applicant expressly identifies that it took into account all relevant factors (including the Applicant’s stated reasons for wishing to withdraw his resignation, which traversed or mapped some of the “other factors” the Guideline says should be taken into account).

22.  The Applicant also seems to have based his complaint upon an assumption that the starting presumption for a consideration of possibly approving a withdrawal of resignation is that approval should be granted, unless there is some good reason to the contrary. I do not think that is the correct starting point. Indeed, I doubt that there is any starting presumption, and the question is simply an open question as to whether or not to approve the withdrawal of resignation. But if there were a starting point, it would more likely be that the resignation having been tendered (and in effect accepted), it would fall to the person seeking to withdraw that resignation to persuade the FSD that the withdrawal should be approved.

23.  Secondly, sufficient explanation and/or reasons were given to the Applicant for the non-approval. He was told that, after weighing the relevant factors (including his own points made in support of his withdrawal application), the withdrawal application was nevertheless not approved in accordance with CSR 321(b). The necessary extent of any reasoning for a decision is context dependent. In this context, I see no reasonable argument that further explanation or reasoning was required.

24.  Nor is it reasonably arguable that it was necessary for the FSD to furnish “proof or evidence” in support of its discretionary decision. Again, the Applicant’s suggestion otherwise might stem from his apparent view as to the starting point of any consideration for withdrawal of resignation (see above). There is no reasonable argument or basis to conclude that the FSD did not have the appropriate matters in mind when deciding whether or not to approve withdrawal of resignation in line with CSR 321(b) and the Guideline.

25.  Further, I remain of the view that – despite the reference to “public interest” in the Guideline – the Applicant’s complaint arises out of a private law employment dispute, of the sort not ordinarily amenable to judicial review (even where the employer is a government department).

26.  The Applicant’s complaint also appears to be based on a misunderstanding or mis-statement of some of the underlying facts, notwithstanding that was pointed out to him by the FSD in its response to his various communications.

27.  Ultimately, it seems that the Applicant tendered his resignation, even within the probationary period of his employment as a fireman; he did so in order to seek better or better-paid employment elsewhere; but when that failed to materialise, he sought to withdraw his resignation. It may be thought, therefore, that the change in circumstances surrounding the requested withdrawal was not beyond the Applicant’s control (one of the factors to weigh). Be that as it may, it may be unfortunate for the Applicant that his application for withdrawal of resignation was not approved, but there is no arguable basis to suggest that the non-approval was the result of any public law error.

28.  For these various reasons, the Applicant’s application fails to identify or raise any public law grounds which are reasonably arguable with any realistic prospect of success.

D.  Result

29.  The application for leave to apply for judicial review is dismissed, with no order as to costs.