阮旻僖 v. 中華基督教會基智中學

HCAL 1041/2024

[2024] HKCFI 2685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1041 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 27 June 2024, the Applicant seeks leave to apply for judicial review of, as she put it (in English translation) “the general requirement of the schools in Hong Kong that female students go to school with their calves exposed in winter” (“Alleged Requirement”).

2.  She named the CCC Kei Chi Secondary School (“School”) as the Putative Respondent. Her affirmation filed in support simply stated (in English translation):

I wish to seek judicial review of the long-standing school uniform requirement in Hong Kong which is unreasonable, defies the laws of nature and involves the element of sex discrimination, namely the arrangement that female students of the majority of the girls’ schools and co-educational schools are required to wear dresses or skirts in bitter weather and have their calves exposed to the cold compulsorily. It is hoped that the court will step in and prohibit all schools in Hong Kong from continuing with this policy, or give explicit instructions to all schools in Hong Kong that female students are allowed or asked to wear thick tights or long trousers in cold weather.

3.  In the light of that intended challenge, I gave directions for the School, and the Education Bureau (“EDB”) as Putative Interested Party, to file an initial response to the application, following which I indicated I would decide how to deal with the matter. Solicitors for the School filed its Initial Response dated 22 August 2024, and the Department of Justice for the EDB filed its Initial Response dated 23 August 2024.

4.  Though I gave no specific direction for the Applicant to file any reply to the Initial Responses, the Applicant did file a further document, including what the Applicant described as a draft (“Draft”) made by her before making the application, in which she says she explained clearly the reasons why she made the application.

5.  Having considered the various materials, I am satisfied that the application for leave to apply for judicial review can be determined on the papers.

6.  This is my Decision.

B.  Standing and Delay

7.  The two points relating to whether the Applicant has standing to bring this application, and her delay in so doing, are connected.

8.  In short, whilst the Applicant was a student at the School beginning in September 2012, she left that school in August 2018, and she is not now a student at any girls’ school or co-educational school in Hong Kong. As a consequence:

(1)  if she was subject to the Alleged Requirement, she ceased to be subject to it some six years ago; and

(2)  she made no attempt to bring any judicial review challenge to the Alleged Requirement in that period of some six years.

9.  On that basis, I agree with the point made on behalf of the EDB that the Applicant lacks the requisite standing to bring this application, as she no longer has sufficient interest in the matter to which the application relates. I am not persuaded that, where the Applicant has no sufficient private interest to support any claim by her to standing, she nevertheless should be accorded standing merely because she raises an issue on which there is, objectively speaking, perhaps a public interest.

10.  On the same basis, I also agree with the point made on behalf of the School that there has been significant delay in making the application. It is trite that an application for leave to apply for judicial review should be made promptly and in any event within three months from the date when grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application can be made. On the original application documents, the Applicant not only failed to reveal that she had left school – and hence any potential for her to be subject to the Alleged Requirement – many years earlier, nor did she seek to explain the delay in bringing the application.

11.  In her Draft subsequently provided, it may be that part of an offered explanation for delay is found in the Applicant’s statement that school students would not be able to distinguish law from reasonableness due to their young age, such that the majority go with the flow unquestioningly, whereas the minority keep warm surreptitiously or seek individual permission to wear long trousers or sports trousers. But that still would not explain why a former school student would take or reasonably need almost six years before mounting any challenge.

12.  Both for the lack of standing and for the significant delay, the Applicant’s application for leave to apply for judicial review simply stands to be dismissed.

13.  Further, as will be seen below, dismissing for these what might be called technical reasons also causes no prejudice to the Applicant, where there is no merit in the application as would have justified the grant of leave to apply for judicial review.

14.  I would add that it is at least unfortunate that the Applicant failed to include with her original application the materials contained in the Draft subsequently provided. The Draft makes clear that the Applicant finished secondary school a few years ago, and that she had decided to voice out for all girl students in Hong Kong because she can often still see that girl students are made to wear clothes causing unreasonable harm to health in severe cold (as she put it). Had that been included in the original application, I think it would have been tolerably clear that the application was bound to be dismissed by reason simply of her lack of standing and the delay.

15.  I would also mention that after I received the application, I was concerned whether the Applicant was of sufficient age to bring court proceedings in her own name, if she was a schoolgirl. Unfortunately, my clerk was unable to contact the Applicant on the telephone number she gave, prior to my issuing directions for the Initial Responses.

C.  Merits

16.  In its Initial Response, the EDB has helpfully explained its role in the formulation of school rules on school uniforms. Generally, it is the management bodies of individual schools (including, without limitation, government schools, aided schools, subsidised schools, private schools and international schools) – and not the EDB – that formulate the precise school rules on school uniforms. Essentially, each school has the discretion whether to have uniforms, and to devise the corresponding school rules as in its professional judgment it sees fit, taking into account the particular circumstances of the school in question.

17.  Individual schools are, however, required to comply with the relevant policies and regulations enforced by the EDB. Amongst other things, it can be noted that the EDB has issued Circular No. 33/2003 requiring schools to observe the principle of equal opportunities in formulating their school policies on areas such as the handling of students’ affairs. The EDB also points out that, if it receives complaints alleging practices or actions deviating from the established rules and practices, it would conduct investigations and liaise with concerned stakeholders with a view to working out solutions. If complaints are found substantiated, regulatory action may be taken.

18.  The EDB has not received any complaint from the Applicant in relation to applicable uniform rules of the School.

19.  That may be because, as pointed out by the School, the intended judicial review challenge is based upon incorrect facts. The School points out that, at all material times including when the Applicant was a student there, the School’s school uniform rules allowed female students to wear grey pants when the cold weather warning is in force. After the Applicant graduated from the School, the school uniform rules were amended to permit female students to wear dark grey stockings when the cold weather warning is in force.

20.  The School points out that the Applicant would have been aware of the entire set of school rules, including the school uniform rules, as they are printed in the Student Handbook distributed to each student enrolled in the School at the beginning of each school year. The Student Handbook is to be signed by the students’ respective homeroom teachers as well as the parent/guardian of each student. Reference would be made to the school rules, including the school uniform rules, from time to time to remind students to comply with them. There would also be an annual discipline assembly for the whole school at the beginning of each school year.

21.  The School will also consider requests from individual students as to wearing trousers in special circumstances even when there is no cold weather warning issued. Such requests would be dealt with on a case-by-case basis.

22.  The School has also identified in its Initial Response that at all material times it has had in place a mechanism for altering and updating the school rules (including school uniform rules) as and when might be necessary and appropriate. That mechanism includes potential input from the various stakeholders including students through a student forum, and parents through the Parent-Teacher Association.

23.  The School has given examples of changes to the rules. Indeed, in her Draft, the Applicant acknowledges that she knew of one change to the School’s rules in respect of school uniforms before making the application for leave to apply for judicial review. But as she did not think identifying the putative respondent as something along the lines of “all secondary schools in Hong Kong” was acceptable, she named the School (her old school) as Putative Respondent.

24.  On the matters canvassed above, an application based upon the Alleged Requirement has no traction, at least in the context of the School. But, it is apparent from the materials provided to me, that the Alleged Requirement is actually also not a general requirement or one adopted by the majority of girls schools and co-educational schools in Hong Kong.

25.  Nothing stated in the Draft shows any more merit in the application, and I do not think I need to lengthen this decision by rehearsing the general arguments put forward by the Applicant in the Draft.

26.  For the above reasons, the application is ill-conceived and stands to be dismissed.

D.  Other Matters

27.  In light of the conclusions already reached above, I do not need to deal with a number of additional points made in opposition to the application. I will, however, mention them for completeness.

28.  An additional submission made on behalf of the School is that the application should be dismissed because the intended challenge is not to an ultimate action or decision with substantial legal consequences and a decisive or determinative effect. Though unnecessary to be decided, I have already noted that the school uniform rules of the School are not absolute because they can be altered and updated in accordance with a set mechanism. I also accept the submission that the supervisory judicial review jurisdiction of the Court is not for the purposes of micro-managing administrative actions and decisions of public bodies, and the Court should be vigilant against doing so.

29.  The School also submits that its decisions are not amenable to judicial review, because there is no or no sufficient public element in the implementation of school uniform rules so as to make them amenable to review. This is because: (1) the School is established by The Hong Kong Council of the Church of Christ in China and managed by its Incorporated Management Committee (“IMC”); the implementation of school uniform rules forms part of the administration of the IMC, and school uniform rules can be set without having to report to the EDB or seek its consent or approval; and this is in line with the school-based management framework introduced by the EDB. Hence the School submits that, though it is a school registered under the Education Ordinance Cap 279, and the IMC is incorporated and established under Part IIIB of that Ordinance, those matters do not render the decisions relating to school uniform amenable to judicial review. Again, I see some force in that submission, but do not need to determine it.

30.  I also note that, in the Draft, the Applicant stated that she did not intend to make a complaint first to the Equal Opportunities Commission, but instead would go directly to the Court on an application for judicial review.

E.  Result and Costs

31.  The Applicant has failed to identify any factually based reasonably arguable public law grounds of challenge with any realistic prospect of success. She also lacks standing and is out of time for applying. Therefore, the Applicant’s application for leave to apply for judicial review is dismissed.

32.  As to costs, both the School and the EDB seek their costs if the application for leave to apply for judicial review is refused. They argue that the costs have been incurred at the invitation of the Court, which will have been assisted by the submissions made in the Initial Responses, and that the Applicant issued the application with full knowledge that the factual basis of allegations against the School is wrong. In essence, both the EDB and the School argued that the application was wholly devoid of merit, and the Applicant’s unexplained factual error (which might been properly put forward had full and frank disclosure been made) has led to expenditure on costs so as to assist the Court’s decision on the application.

33.  Whilst I see considerable force in those points, and I acknowledge the assistance provided by both the School and the EDB, I have decided that, in the final exercise of my broad discretion as to costs in the particular circumstances, the appropriate order to make is no order as to costs.