During the 2019 anti-extradition bill protests, a government schoolteacher repeatedly posted provocative remarks that could incite hatred and violence against police officers and their family members on social media platforms. The Disciplinary Inquiry Committee deemed this inappropriate behavior as serious misconduct. In a letter dated July 10, 2023, the secretary for the civil service (the Secretary) directed that the teacher be punished by dismissal without retirement benefits under Section 10 of the Public Service (Administration) Order.

Subsequently, the teacher concerned (the Applicant) applied for a judicial review, arguing that the dismissal decision overly interfered with her freedom of speech and requested the court to overturn the decision. On April 26, the Court of First Instance ruled in favor of the teacher, stating that while the Secretary had the right to deem the teacher’s behavior inappropriate, stripping her of all retirement benefits was excessive, thus quashing the Secretary’s decision. It would appear that the judge’s ruling lacked a sufficiently deterrent effect and failed to display the principles of the rule of law and justice.

The Education Bureau’s Code of Professional Conduct for Teachers (the Code) clearly outlines professional ethics and behavioral norms for teachers.  

As a senior teacher with 27 years’ experience, the Applicant should be familiar with the Code and should have adhered to its provisions and guidelines, including upholding the rule of law, setting a good example, and maintaining professionalism, refraining from actions that tarnish the professional image of teachers.

The Applicant’s actions were knowingly committed, disregarding the Code and challenging legal boundaries. She filled her posts with insulting and offensive language, inciting hatred toward police officers and their families, indirectly conveying messages endorsing the bullying of police officers’ children and other family members.

This behavior severely violated professional ethics and damaged the good reputation of the education sector, and the impact of the Applicant’s dissemination of anti-police remarks extended beyond students, teachers and parents, misleading young people, tainting residents’ minds, and harming Hong Kong’s rule of law.

The judge concluded that there was no finding by the Inquiry Committee of any actual adverse impact on students and the teaching profession, and that there is no longer the need for strong deterrence against such behavior in the changed civil and societal circumstances, thus dismissal with retirement benefits retained is a more suitable punishment. This verdict, however, failed to acknowledge the severity of the Applicant’s misconduct and did not align with the spirit of upholding the rule of law and justice.

Although Hong Kong has restored peace and order since the implementation of national security laws, it is imperative to ensure that provocative and hateful speech does not escape consequences. The judge displayed significant bias toward the Applicant, failing to take into account the gravity of the case and administer a penalty with suitable deterrent effect. This leniency effectively condones the incitement of violence and hatred.

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

Freedom of speech is not absolute; it can be restricted when it endangers national security, public safety, public order, health, morality, or others’ rights. The Applicant’s continuous sharing of provocative and hateful remarks against the police on social media not only contravened the Code of Professional Conduct for Teachers but also potentially violated Sections 9 and 10 of the Hong Kong Crimes Ordinance, which cover incitement offenses. Should the Education Bureau pass the case to the police for investigation, the Applicant could be subject to criminal charges and face legal consequences.

Freedom of speech should not be used as a shield to protect hatemongers. In this case, the Disciplinary Inquiry Committee has struck a balance between the Applicant’s freedom of speech and the need to uphold professional ethics and standards by recommending a fair, just and appropriate punishment of dismissal that accurately reflects the severity of the case.

The Applicant only challenged the proportionality of the Secretary’s decision, without questioning the reasonableness, legality, or fairness of the Disciplinary Inquiry Committee’s factual conclusion. With no legal basis provided, the Applicant cannot challenge the committee’s factual conclusion through judicial review.

The judge agreed that it is not possible to bring in arguments relating to proportionality in the absence of a public law challenge to the Disciplinary Inquiry Committee’s findings. Moreover, the judge ruled that the disproportionality challenge for interference with the right to freedom of expression and/or right to privacy fails.

It is a well-established principle that the court will rarely disturb on irrationality grounds a sanction decided by professional disciplinary bodies. Ordinarily, professional disciplinary bodies are familiar with the whole graduation of seriousness of disciplinary cases and are particularly professionally qualified to say at what point on the scale of punishment is the appropriate sentence.

As reflected in the Code and various circulars, significance is attached to the conduct and integrity of teachers in the civil service. The Hong Kong Special Administrative Region government takes a zero-tolerance approach toward the improper conduct of government schoolteachers, in particular where obscenity and indecency are involved.

The public has extremely high expectations of teachers as they are responsible for nurturing the future pillars of society, and have high expectations of civil servants who are the backbone of the government and, by definition, servants of the public.

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

The gravity of the Applicant’s established misconduct in the present case was profoundly serious. The Secretary’s decision imposing “dismissal without retirement benefits” was fair, just, reasonable, and “manifestly adequate”.

With respect, it is submitted that the judge erred in quashing the decision of the Secretary, as retaining the retirement benefits of the Applicant fails to reflect the seriousness of the case and lacks deterrent effect. The Department of Justice should consider filing an appeal for the sake of the rule of law and justice.

The author is a law professor, director of the Chinese Association of Hong Kong and Macao Studies, and vice-president of the Hong Kong Basic Law Education Association.

The views do not necessarily reflect those of China Daily.