Court allows judicial review challenge against punishment of schoolteacher

Public Law

On 26 April 2024, the Honourable Mr Justice Coleman (the Judge in charge of the Constitutional and Administrative Law List of the High Court) handed down judgment in HCAL 1804/2023 ([2024] HKCFI 1020), allowing a judicial review of a decision (“Dismissal Decision”) made by the Secretary for the Civil Service (“Secretary”) which directed that the Applicant be punished by dismissal under section 10 of the Public Service (Administration) Order (“PS(A)O”). The successful Applicant was represented by Anson Wong Yu Yat, assigned by the Director of Legal Aid.

The Applicant joined the civil service and served as a schoolteacher for 27 years. The Dismissal Decision flowed from various posts (“Facebook Posts”) made by the Applicant on her Facebook account, where each of the Facebook Posts was able to be seen by “friends” only (as opposed to being “public”). The acts of posting the Facebook Posts were alleged to be misconduct, and were considered by an Inquiry Committee which found misconduct proved. Up to that time, the Applicant had an unblemished record of conduct. After several rounds of representations, the Secretary made the Dismissal Decision, which was the harshest possible punishment in that, upon her dismissal with effect from 11 July 2023, all claims to the Applicant’s retirement benefits or other benefits and advantages would be forfeited in full.

The Applicant raised four grounds of review:

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

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

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

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

While the Court rejected Grounds 1 and 2, it held that Ground 3 is established, finding that “the punishment of dismissal without benefits is so harsh and oppressive in the overall circumstances that its imposition must have involved some error of law” ([143]). In light of the finding on Ground 3, the Court found it unnecessary to rule on Ground 4, but commented that: “it would have been preferable to have seen in any of the documents a real consideration of the points put forward in mitigation. If one reason for the giving of reasons is to see that important points and arguments made have actually been grappled with, I question whether that is clear here.” ([160]) Accordingly, the Court ordered the Dismissal Decision to be brought up and quashed.

Notably, the Court remarked that at the substantive hearing on 11 April 2024, “the case was extremely well argued on both sides” ([8]). As Lord Hobhouse famously put it in Medcalf v Mardell [2003] 1 AC 120 at [51]: “The duty of the advocate is with proper competence to represent his lay client and promote and protect fearlessly and by all proper and lawful means his lay client’s best interests.” The present case illustrates the discharge of such duty irrespective of the conduct, opinion or belief of an individual client.

 

Anson Wong Yu Yat

“Anson is very comprehensive and creative in his research and very meticulous in his written work. His strength lies in his refusal to give up and his insistence in trying to find solutions around problems or obstacles to his client’s case.”
Legal 500 Asia-Pacific 2024, Commercial Disputes & Administrative and Public Law — Leading Juniors

Anson has appeared in more than 150 court judgments (including 17 cases in the Court of Final Appeal with 11 substantive appeals) over the mere span of 8 years of full practice, reflecting the exceptional wealth of experience and exposure in civil litigation for his seniority.

Anson is experienced in handling complex questions of law, including those of great general or public importance which reached the Court of Final Appeal. For example, he has recently appeared in (among others) three civil appeals before the Court of Final Appeal dealing with important questions concerning insolvency matters, land law and equity, service out of jurisdiction and statutory interpretation.

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This article was first published on 2 May 2024.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.