LAW CHI YUEN v. SECRETARY FOR EDUCATION

HCAL 91/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 91 OF 2011

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BETWEEN

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D E C I S I O N

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1.  After deliberation, subject to what I say below as to the need for amendments of the Form 86 and the pursuit of alternative remedies before the Equal Opportunities Commission, I am inclined to grant leave for judicial review in this matter. I do not intend to say much about the merits of the application at this stage. However, in view of the submissions advanced by Mr Yim in the application for leave, I should explain why amendments are necessary.

2.  The appropriate test for granting leave is the arguability test as explained by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  At para. 15 of the judgment, the Chief Justice said,

“Under this test, arguability must mean reasonable arguability. A claim for relief which is not reasonably arguable could not be regarded as arguable. A reasonably arguable case is one which enjoys realistic prospects of success. Whilst the test adopted represents a higher threshold than the potential arguability test, claims which are reasonably arguable would be given leave to go forward under it. It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed.”

3.  One should also note the difference between potential arguability and arguability, see para. 12 of the judgment.  As regards potential arguability, it was summarized by the Chief Justice as follows,

“In contrast, on the potential arguability test, the applicant need not demonstrate an arguable case. It is sufficient for him merely to satisfy the court that on further consideration at a subsequent hearing an arguable case might be demonstrated.”

4.  This distinction is well known to practitioners in the field of judicial review.  However, this court from time to time hear counsel contending at a leave application that since it is only a leave application the court needs not be satisfied there and then that the case of an applicant as formulated is arguable.  Sometimes, counsel took the stance that the proper formulation of a case could be left to a later stage and some apparent difficulties in the case could be addressed at the substantive judicial review hearing.

5.  As in other civil litigation, the precise formulation of the forensic argument in an application for judicial review may need to be revised after being confronted by the evidence of a respondent.  However, it does not mean that the court could grant leave despite the lack of any reasonably arguable answer to an obvious problem in an applicant’s case.  That would be reverting back to the old test of potential arguability.  Under the arguability test, the court would generally refuse leave when it is not satisfied that an applicant’s case is reasonably arguable.

6.  In the present context, there is an obvious difficulty in Mr Yim’s contention of inter-disability discrimination by reference to Section 6(a) of the Disability Discrimination Ordinance [“DDO”] Cap. 487.  I do not think there is any inconsistency between the Chinese version and the English version.  Thus, the answer offered by Mr Yim based on Section 10B of the Interpretation and General Clauses Ordinance Cap. 1 does not, in my view, provide a reasonably arguable basis for sustaining the inter-disability discrimination argument.  Neither do I see any merit in the contention that the Code of Education issued by the Equal Opportunities Commission could be prayed in aid in the construction of Section 6(a).  Section 6(a) was enacted many years before the drafting and endorsement of the Code by the Legislative Council.  The views of the Director (Disability) of the Equal Opportunities Commission in the correspondence with the Legislative Council Secretariat in June 2001 are also inadmissible for the purpose of construing Section 6(a).  If these were the only bases for any argument based on discrimination, I would refuse leave in respect of ground (1).

7.  However, it may not be necessary for the Applicant to rely on Section 6(a).  I can see that there are reasonably arguable basis for advancing a case of discrimination based on Section 6(b) of DDO.  The Code of Education, as far as it relates to the obligation of the Government (in particular para. 22), could arguably be regarded as intra vires by reference to that section and section 36(1) as well.

8.  Further, it is reasonably arguable that the Applicant can pray in aid of Article 25 of the Basic Law and art. 26 of the ICCPR, see Fok Chun Wa v Hospital Authority CACV 30 of 2009, 10 May 2010, paras. 72 to 76, reading them together with Article 136 of the Basic Law.  As far as I am aware, whether these constitutional provisions take matter further than the position set out by the legislature in the DDO has not been considered by our courts.

9.  Mr Yim has not advanced arguments along these lines.  However, in an application for leave, once I reckon these contentions to be reasonably arguable against the factual matrix already put before the court, subject to the necessary amendments to the Form 86, I do not think the court should simply shut its eyes to such potential arguments and refuse leave on the basis that the wrong legal argument was advanced on behalf of the Applicant.

10.  I should add that I have taken into account the evidence of the putative respondent.  At this stage, I would not pre-empt any arguments on the justification of the differential treatment between ID students and other students.  I expect more evidence to be filed in that regard, in particular in the comparison between the benefits to ID students and other students from the service of a NET teacher in the light of the respective course structure.

11.  I shall give the Applicant 21 days to put forward an amended version of Form 86 in the light of the above comments.  The court would then consider the leave application on the basis of the amended Form 86.  If I shall later grant leave on the amended Form 86, I shall give further directions as to the future conduct of the matter. 

12.  I would also wish to have written submissions from the Applicant, again within 21 days, on whether the school or EOC should be served or joined as Interested Parties to the proceedings and the implications of concurrent proceedings before the Commissioner of Equal Opportunities.  Bearing in mind the statutory scheme in the DDO, a claim to the EOC should normally be the preferred alternative and the Applicant must justify proceeding with an application for judicial review by way of concurrent proceedings.  In this connection, I do not regard Section 71(2) as providing a sufficient answer.