A Hong Kong judge sided with a teacher who was fired over online comments about police in 2019, ruling that the authorities’ decision to dismiss her was “oppressive.”
Toffee Tam, a veteran teacher, won her case against the Civil Service Bureau at the High Court on Friday. She lodged a judicial review last October, three months after losing her job at a government secondary school. She was also stripped of her retirement benefits.
The Civil Service Bureau had accused her of publishing Facebook posts between June and September 2019 that negatively affected students and tarnished the government’s reputation.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Judge Russell Coleman heard Tam’s arguments earlier in April. In a written judgement handed down on Friday, Coleman said the Secretary for Civil Service did not appear to give “active consideration of any alternative form of punishment.”
Under civil service guidelines, misconduct can be met with consequences such as reduction in rank or compulsory retirement, Coleman wrote.
“I am satisfied that the punishment of dismissal without benefits is so harsh and oppressive in the overall circumstances that its imposition must have involved some error of law,” he added.
In response to HKFP, the Civil Service Bureau said it was looking into the court’s judgement. It will seek legal advice and take action accordingly, the bureau added.
‘Unblemished conduct’
Tam joined the civil service as a teacher in 1995, according to Coleman’s judgement. At the time of her firing, she was a teacher at the Jockey Club Government Secondary School in Kowloon Tong, where she had worked since 2015.
Her dismissal was based on eight Facebook posts made in Cantonese. One of them read “Corrupt cops, may your whole family die.” In another, Tam shared a video of a police officer falling over and added, “Exactly what kind of training [do] they receive, how much money are [the police officers] paid?”
Screenshots of her comments were published in Chinese state-backed newspaper Ta Kung Pao, which shared her full English and Chinese names as well as information about the school she worked at. Tam was moved to non-teaching duties in September 2019 following complaints made to the Education Bureau and the Civil Service Bureau.
Protests erupted in June 2019 over a since-axed extradition bill. They escalated into sometimes violent displays of dissent against police behaviour, amid calls for democracy and anger over Beijing’s encroachment. Demonstrators demanded an independent probe into police conduct, amnesty for those arrested and a halt to the characterisation of protests as “riots.”
In the judgement, Coleman said he acknowledged that the government attaches “great importance” to the conduct and integrity of teachers in the civil service, and that Tam’s misconduct in the case was “very serious.”
But he questioned whether authorities had given much weight to the fact that Tam had “25 years or so of unblemished conduct” prior to the incident.
Coleman added that the stripping of her retirement benefits would remove “significant benefits built up over a significant period of time where there was no criticism of [Tam’s] conduct.”
“The practical reality [is] that at her age it may be difficult or even impossible for [Tam] to find new employment, let alone employment which enables rebuilding of any part of a retirement fund,” he wrote.
Free speech argument rejected
Coleman’s decision, however, came as he rejected Tam’s argument that the dismissal undermined freedom of expression. This argument had “formed the main focus” of Tam’s lawyer Anson Wong’s oral submissions during the review hearing, the judge acknowledged.
At the hearing, Wong quoted the maxim “I disapprove of what you say, but I will defend to the death your right to say it,” a saying often used to defend freedom of speech. Wong added that free speech was important as it allowed people to express their emotions, preventing them from being channelled into violence.
But in his judgement, Coleman wrote: “[W]here it is undisputed that teachers and civil servants are permitted to express their views, provided that they do so peacefully and lawfully and take care to prevent their views being misused, the interference with the Applicant’s freedom of expression was limited.”
He added that he accepted the authorities’ view that Tam was not “contributing to rational public discourse,” and that the public has high expectations of teachers and civil servants.
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