WONG YUI HIN JAMES v. HONG KONG ARTS DEVELOPMENT COUNCIL

HCAL 57/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 57 OF 2003

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J U D G M E N T

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Facts

1. The Venice Biennial, a world-renowned visual arts exhibition, was first held in 1895. The biennial exhibition attracts participants from around 50 cities and countries. The Hong Kong Arts Development Council, the Respondent in the present proceedings, took part in the 49th Venice Biennial in the name of "Hong Kong China" for the very first time in 2001. It was a success. In March 2002, the Council endorsed Hong Kong's continued participation in the 50th Venice Biennale 2003, which was to be held from June to November 2003.

2. To take part in the exhibition, the Council set up a steering group to plan and coordinate administrative tasks such as policy formulation, site selection, project supervision and evaluation. One-third of the members of the steering group were also members of the Council. Besides, a selection panel was also formed to select the curator of the Hong Kong exhibition. The selection panel comprised distinguished arts professionals. In due course, a document entitled "Participation in the '50th Venice Biennale' (Visual Arts) Invitation for Exhibition Proposal (Application Guidelines)" ("the guidelines") was prepared and approved by the Arts Promotion Committee of the Council. On 20 November 2002, the Council published the guidelines, inviting all interested art organisations and independent curators to submit exhibition proposals to compete for the curatorship of the event.

3. The more relevant parts of the guidelines read as follows:

"Foreword

Since its inception in 1895, the "Venice Biennial" is the world's earliest visual arts biennial. It has received great support and recognition from the international visual arts community with about 50 countries and regions participating annually in the event. To boost Hong Kong's international image and local visual arts development, the Hong Kong Arts Development Council (hereafter referred to as the "ADC" or the "Council") decided to join hands with the Leisure and Cultural Services Department, and made its debut in the 49th "Venice Biennial 2001" under the name of "Hong Kong China". The participation aimed at proclaiming Hong Kong's visual arts* to the world at large as well as promoting cultural exchanges between Hong Kong and countries around the world.

*Definition of visual arts: visual arts encompass a wide spectrum of activities including Chinese calligraphy and painting, seal engraving, Western painting, print-making, sculptures, ceramics, design, photography, multi-media arts (including digital, video, architecture and installation art etc), Chinese folk handicrafts, public art and murals etc.

Objectives

The ADC plans to participate again in the 50th "Venice Biennial 2003" (termed in short as the "project"). By exhibiting local visual artworks on the world stage of arts, it aims to bridge Hong Kong's visual arts with the world and:

* To establish Hong Kong's image as an international arts and cultural centre;

* To promote creativity and develop international perspective among local artists through arts exchange;

* To create a favourable environment conducive to the long-term development of visual arts in Hong Kong.

...

Curator - Eligibility and Responsibilities

...

Responsibilities:

3. During the course of the project, the selected curator is required to take care of all matters related to the project, including but not limited to the followings:

(1) Exhibition

...

(2) Publicity

...

(3) Project Report and Evaluation

...

Content of the Exhibition Project Proposal

1. Local arts organisations/independent curators who are interested in the project, please refer to the information in the appendices and submit project proposals to the Council before the submission deadline ...

2. The maximum amount of the budget for the project proposal is $550,000 and it should include the following expenses:

(1) Curator fee, including expenses for contact and research work;

(2) Production cost of exhibition items (in the form of 'actual expenses')

(3) Other related expenses ...

(4) Audit fee ...

(5) The Council allows the applicant to seek commercial sponsorship for item (3) above, but it must be clearly stated in the project proposal and receive approval from the Council before acceptance of outside sponsorship.

3. The Council welcomes innovative concept on the exhibition, but applicants must state clearly how they would cope with the special requirements for equipment, venue and materials.

...

Selection Procedures and Criteria

1. The Council will invite arts experts to form an independent selection panel and assess all project proposals submitted before the deadline.

2. The panel meeting is scheduled to be held in January 2003 and the selection criteria are as follows:

(1) Whether the curative proposal is unique and innovative, representing Hong Kong and relevant to the theme of the 50th Venice Biennial ... ;

(2) The quality of the proposed exhibited artworks, the artistic merits and ability to complete the artwork of the proposed participating artists;

(3) the feasibility of the project;

(4) the track record of the curator

For example: experience in curation of international exhibition, overseas networks, administrative capability etc;

(5) whether the proposed budget is reasonable.

3. The selection panel will invite the arts organisation/independent curator that has submitted proposal to attend panel meeting when necessary.

4. As the project must be in alignment with the theme of the 50th "Venice Biennial", as well as taking into account strategies adopted by Hong Kong in participating in the event, the Council respects the final decision of the selection panel based on deliberation of overall strategies.

5. The ADC reserves the right not to accept/consider project proposals that fail to meet the above criteria.

Notification of Results, Signing of Undertaking and Disbursement of Grant by Instalment

1. The Council has scheduled to announce the result of application in January 2003 upon completion of selection procedures; the Council reserves the right of final decision to select/not select art organisation/independent curator.

2. The Council will decide on the details of the project and the budget with the selected art organisation/independent curator. The commissioned party must submit a revised project proposal/budget to the Council before the signing of Undertaking.

3. The Council will sign an Undertaking with the selected art organisation/independent curator.

4. In principle, the grants disbursed by the Council for the project are paid by four instalments ...

The Prevention of Bribery Ordinance

1. Hong Kong Arts Development Council is a "public body" under the Prevention of Bribery Ordinance Cap. 201. All HKADC members and staff must abide by the regulations related to the acceptance of advantages.

...

Appeal Procedures

1. The decision of the ADC is final. However, appeals against grant decisions will be considered under the following conditions:

(1) The appeal must be formally made in writing and submitted within one month from grant results notification;

(2) The ADC will consider the appeal only on grounds of:

i. improper processing procedures of the project proposal;

ii. rejection of project proposal due to the decision being based on inaccurate information, in which case, the applicant must substantiate the claim, based on information submitted in the original application, that the ADC's original decision was misinformed. (Information that is new and independent of the original proposal will not be accepted);

(3) The ADC will not accept appeals against artistic appreciation and judgement;

(4) The ADC will not accept appeals not substantiated by concrete reasons; and

(5) Depending on the competition, the ADC reserves the right to set additional assessment criteria which are objective and do not contradict existing ones to facilitate the processing of applications; appeals against such additional objective criteria are not accepted.

2. Eligible appeals will be processed by an independent Committee in the ADC. The decision of the Committee will be taken as final.

...

The 50th Venice Biennial (2003)

Background Information

...

3. Venue for the "Hong Kong Pavilion"

The venue for the Hong Kong Pavilion in the 50th "Venice Biennial" has not been confirmed yet, but it will based on the experience in the 49th "Venice Biennale". The area of the Hong Kong Pavilion in the 49th "Venice Biennale" is about 3,500 sq ft."

4. The Applicant is a local visual artist who is, according to one of the adjudicators comprising the selection panel, "a good artist whose work is close to the community and the society [and who] is very active in social and political arts".

5. He submitted his application on 2 January 2003.

6. According to the evidence filed by the Applicant for the purpose of the present proceedings, his proposal was prepared on the basis that the size of the Hong Kong Pavilion would be about 3,500 sq. ft., with an acceptable range of deviation of ±500 sq. ft. (i.e. between 3,000 and 4,000 sq. ft.).

7. However, unbeknown to him, even before he submitted his application, the steering group had decided at a meeting held on 7 December 2002 that a site (known as the "Arsenale warehouse site"), of about 1,000 sq. ft. in area, would be the steering group's first choice. That preference was confirmed by the steering group in its subsequent meeting held on 18 December 2002.

8. According to the disclosed documents, the Applicant's proposal was assessed by the selection panel between 11 and 15 January 2003. On 16 January 2003, the selection panel interviewed the short-listed applicants. The Applicant was not amongst those short-listed by the panel for interview.

9. The Applicant learned, as was indeed the case, that during the interviews, the selection panel indicated to the short-listed applicants that the venue would be of a size of about 1,000 sq. ft. only, which was less than 1/3 of the size of the venue in the last exhibition referred to in the guidelines.

10. On 18 and 21 January 2003, the Applicant who was aware that he had not been short-listed, wrote to the Council complaining about not being informed of the substantial change in size of the venue, which, according to the Applicant, would have materially affected his concept and proposal.

11. On 22 January 2003, following further interviews with the short-listed applicants, the selection panel unanimously chose from amongst the interviewees the successful applicant (Para/Site Art Space Limited - "Para/Site") for the approval of the Arts Promotion Committee under the Council.

12. On 30 January 2003, the Council by letter informed the Applicant that his proposal had not been selected by the selection panel.

13. On 31 January 2003, the Arts Promotion Committee approved the recommendation of the selection panel.

14. On 28 February 2003, the Council's steering group wrote to the Applicant in reply to his earlier letters regarding the downsizing of the venue.

15. Pursuant to the appeal procedure set out in the guidelines, the Applicant wrote to appeal on 28 February 2003. On 4 March 2003, the Council acknowledged receipt of the Applicant's appeal letter. In the Council's reply, an application form for appeal was attached and the Applicant was requested to provide details of his grounds of appeal and return the form to the Council.

16. On 13 March 2003, before the Applicant returned to the Council his completed form for appeal, the Council held a press conference announcing to the public that Hong Kong would participate in the 50th Venice Biennale and Para/Sit had been selected as the curator of the Hong Kong exhibition.

17. On 19 March 2003, the Applicant submitted his completed form for appeal to the Review Committee under the Council. The Applicant complained, amongst other things, that the Council did not follow its own guidelines by substantially deviating from the size of venue set out in the guidelines.

18. By letter dated 7 April 2003, the Review Committee informed the Applicant of the dismissal of his appeal. The Review Committee wrote (as per the certified translation):

"i) With regard to the size of the Pavilion, we have in fact considered venue of different sizes in order to provide the selected curator with different choices to consider. The Selection Panel have never represented that we have confirmed to rent a venue of 1,000 sq. ft. The selected curator can choose from venue of different sizes and locations on their own volition and then submitted their decision to us for approval. We have therefore never altered the contents of the Application Guidelines.

...

v) In relation to your comments on insufficient preparation time or uncertainty in the venue of exhibition etc., all the applicants should have taken these into consideration when deciding to submit applications. Also, assuming that the Committee accepts the review application from any person, we will make separate appropriate arrangements which will not affect the progress of the Biennial."

19. On 30 April 2003, the Council signed an agreement with Para/Site in respect of the exhibition in the 50th Venice Biennale. Pursuant to the agreement, the latter took part in the Biennale as Hong Kong's representative in the latter part of 2003.

Application for judicial review

20. On 30 April 2003, the Applicant applied for legal aid for applying for judicial review against the decisions of the Council. On 6 June 2003, whilst his application for legal aid was still pending, the Applicant made an application in person for leave to apply for judicial review, no doubt in order to beat the 3-month time limit for making an application for leave. His application was initially unsuccessful.

21. On 4 July 2003, legal aid was granted. Based on an amended form 86A prepared by counsel, the Applicant successfully obtained leave to apply for judicial review from the Court of Appeal on 9 October 2003. By then, the 50th Venice Biennale was in its last month. It officially ended on 2 November 2003.

22. In this application for judicial review, the Applicant seeks a declaration that the decision of the selection panel communicated to him by letter dated 30 January 2003 rejecting his application for curatorship was unlawful, a declaration that the decision of the Review Committee of the Council communicated to him by letter dated 7 April 2003 dismissing his appeal was unlawful, and damages based on the breach of a contract - the Applicant argues that there was made a contract between him and the Council when he submitted an application pursuant to the guidelines issued by the Council competing for the curatorship.

23. At the substantive hearing of the application for judicial review, counsel for both parties argued on several distinct issues raised by the application. I will deal with the issues in turn.

Amenability to judicial review

24. The first issue is the amenability of the two decisions of the Council to judicial review. This brings me conveniently to the Hong Kong Arts Development Council Ordinance (Cap. 472) under which the Council has been established.

25. According to the preamble, the Ordinance was enacted:

"To provide for the establishment and the functions of the Hong Kong Arts Development Council as a body corporate for the purpose of the development of the arts in Hong Kong."

26. Section 3(1) of the Ordinance provides for the establishment of the Council as a body corporate. Section 3(3) of the Ordinance sets out the composition of the Council, which consists of a chairman, a vice-chairman and not more than 22 other members appointed by the Chief Executive, together with the Secretary for Home Affairs or his representative, the Director of Education or his representative and the Director of Leisure and Cultural Services or his representative. The section also provides for the nomination of up to 10 persons from various artistic fields in Hong Kong, as members of the Council.

27. Section 3(7) provides that the members of the Council are the governing body of the Council and shall, in the name of the Council, manage the affairs of the Council and exercise the powers conferred on the Council under the Ordinance. Subsection (9) provides that the Council is not a servant or agent of the government and does not have the status, immunities or privileges of the government.

28. Sections 4 and 5 of the Ordinance provide for respectively the functions and powers of the Council. They read as follows:

"4. Functions of the Council

The functions of the Council are ―

(a) to plan, promote and support the broad development of the arts, including the literary, performing, visual and film arts, and to develop and improve the participation and education in and the knowledge, practice, appreciation, accessibility and informed criticism of the arts, with a view to improving the quality of life of the whole community;

(b) to formulate and implement strategy for the planning, development, promotion and support of the arts;

(c) to uphold the principle of, and encourage, freedom of artistic expression;

(d) to encourage excellence, innovation, creativity and diversity in the arts;

(e) to encourage interest, understanding, knowledge and skill in the arts at all levels within the formal education system as well as through extracurricular, part-time and voluntary systems;

(f) to strive for the creation of an environment conductive to ensuring that ―

(i) all persons in Hong Kong have the opportunity to enjoy, partake in and have access to the arts; and

(ii) those with the ability and desire to pursue a career in the arts have the opportunity to do so and receive tuition;

(g) to advise the Government on the policies, standard of provision of facilities, educational programmes, levels of funding and any other matters that may affect the planning, development, promotion and support of the arts; and

(h) to engage in other activities conducive to the planning, promotion and support of the development of the arts that the Chief Executive, after consultation with the Council, permits or assigns to it.

5. Powers of the Council

(1) The Council may do all things that ―

(a) are expedient for or incidental or conducive to, the better performance of; or

(b) in the opinion of the Council, are necessary to facilitate the carrying out of,

the functions of the Council.

(2) Without restricting the generality of subsection (1), the Council may ―

(a) prepare, promulgate and implement proposals for the planning, development, promotion and support of the arts;

(b) prepare, promulgate and implement proposals for advancing and improving the knowledge, practice, appreciation, accessibility and informed criticism of the arts;

(c) prepare, promulgate and implement proposals for the education and training of suitable persons with the ability and desire to pursue a career in the arts;

(d) carry out itself, or encourage and support other persons or bodies to carry out research, documentation and planning and to disseminate information;

(e) carry out studies into and in respect of the arts and their needs and review the progress in meeting those needs and make proposals for any action the Council considers necessary;

(f) take action that the Council considers is appropriate, including giving advice to any person, on any matter relating to the functions of the Council;

(g) maintain appropriate liaison, working relationships and consultation with and do anything which it may do under this Ordinance in association or co-operation with the Government, the Hong Kong Academy for Performing Arts, the Hong Kong Arts Centre, schools, colleges or tertiary institutions, District Councils and district associations, professional and amateur arts organizations and any other body or person involved in the promotion of the arts in Hong Kong, and in doing so the Council shall respect the autonomous positions of those bodies and persons;

(h) receive grants from public funds, accept and solicit private gifts and donations, whether of property or otherwise and whether subject to any trust or not;

(i) raise money through sponsorship and other activities and to assist others in doing so where considered appropriate by the Council;

(j) disburse grants to organizations and individuals for the planning, development and promotion of the arts and pay such amounts of money to any person or organization whose functions are similar or incidental to the functions of the Council on terms and conditions as to that payment or otherwise that the Council considers appropriate;

(k) consult, communicate, collaborate and facilitate cultural exchanges with organizations in places outside Hong Kong in the development of the arts and to secure the benefit of relevant experience from places outside Hong Kong, and to encourage and support others to do so where considered appropriate by the Council; (Amended 23 of 1998 s. 2)

(l) acquire, take on lease, purchase, hold and enjoy movable property and sell, let or otherwise dispose of or deal with movable property;

(m) acquire, take on lease, purchase, hold and enjoy immovable property and lease or, with the approval of the Financial Secretary, sell or otherwise dispose of immovable property;

(n) surrender any lease or apply for and agree to the modification of lease conditions or enter into any exchange;

(o) undertake and execute any trust which has for its object the development of arts or any other object similar or incidental to the functions of the Council;

(p) engage in any of its activities or exercise any of its powers either alone or in association with any other person or persons; and

(q) engage in or support any other activities which the Council considers will facilitate the carrying out of the functions of the Council."

29. Section 7(1) of the Ordinance gives the Council the power to delegate in writing any of its functions, powers or duties to any person or committee. Paragraph 7 in the schedule to the Ordinance provides for the establishment of committees:

"7. Establishment of committees

(1) Subject to section 7 of this Ordinance, the Council may establish committees that it considers appropriate for the better carrying out of the functions, powers and duties of the Council.

(2) The Council may ―

(a) appoint members of the Council and, if it considers it appropriate, persons who are not members of the Council, to a committee; and

(b) appoint as the chairman of a committee any member of the Council appointed under paragraph (a).

(3) The chairman of a committee shall appoint the times and places of meetings of the committee.

(4) The Council may give directions to a committee on any matter including its ambit, terms of reference and responsibilities, procedures and the voting rights and any other rights or responsibilities of any member or class of member of a committee.

(5) Subject to this Ordinance and any directions from the Council, a committee may regulate its own procedure."

30. Section 8 of the Ordinance provides for the provision of financial assistance to the Council out of money appropriated by the Legislative Council.

31. As mentioned above, the Arts Promotion Committee is a committee established by the Council. The Review Committee, which was charged with the duty of deciding appeals under the guidelines, is a standing committee established by the Council pursuant to its power under the Ordinance and the schedule. Both the steering group and the selection panel were ad hoc sub-committees formed by the Arts Promotion Committee.

32. It is common ground that the Council is a public body. But it is accepted that not every decision of a public body is amenable to judicial review. In Matteograssi SpA v. The Airport Authority [1998] 2 HKLRD 213, 219C, Mortimer V-P said:

"There is, of course, no universal test to determine whether a decision by a public body is amenable to judicial review. In borderline cases this is a question of impression and degree."

33. In Ngo Kee Construction Co. Ltd v. Hong Kong Housing Authority [2001] 1 HKC 493, Cheung J (as he then was), after a thorough review of local and overseas authorities, set out the relevant principles, with particular reference to the Housing Authority (the decision of which was under challenge in that case), at pp. 506D to 507C, as follows:

"There is no single test for identifying whether judicial review applies: R v Panel on Takeovers and Mergers, ex p Datafin plc [1987] QB 815. On a review of the cases, they show that judicial review does not apply to decisions of a public body where ―

(1) The decision is commercial in nature, such as the purchase of goods or services or a tendering process, so the public body is acting like a private body.

(2) There is no statutory underpinning of the decision and the public body is left to decide on the substance and procedure of the decision-making process.

(3) There is no allegation of fraud, corruption or bad faith.

The Housing Authority is a public body set up by legislation. However, not everyone of its decisions is amenable to judicial review. One can envisage three situations. The first being a decision in connection with its public duty of providing low cost housing to the public. If, for example, it makes a decision on the criteria in which the individuals are entitled to acquire the houses, without going too deeply into the issue, one would have thought that this is a matter that is subject to judicial review because of the public element involved. On the other end of the scale, to use the example relied upon by Mr Pannick QC, counsel for the Housing Authority, when it purchases office stationery such as elastic bands, its decision is unlikely to be amenable to judicial review since this is in its nature a commercial decision and subject to private law. Between these two extremes, if, for example, the Housing Authority, in order to discharge its statutory function of providing low cost housing requires building contractors to carry out the construction work, and maintains a list of approved contractors who are entitled to bid for its work, the tendering process cannot be a matter of judicial review because of its commercial nature. Likewise the decision to suspend an approved contractor from tendering for contract is, in my view, also a commercial decision and is not subject to judicial review. If the failure to obtain a contract after tendering is not subject to judicial review, I fail to see how a decision to suspend the applicant from tendering would make him so entitled. It is still part of the tendering scheme which, in the absence of statutory underpinning, a public body is entitled to make up its own mind on who should be awarded the contract. The mere fact that the applicant was told in advance that for the next 24 months it would not be allowed to tender is clearly no different from a situation where each tender by the applicant would not be accepted. After all, the underlying rationale is that it is a commercial dispute."

34. In Lee Shing Yue Construction Co. Ltd v. Director of Architectural Services [2001] 1 HKLRD 715, Hartmann J said (at pp. 727E/F - 728B):

"How then is the division to be identified? There is no universal test. Each case will depend on its own facts. While the actions of public authorities are prima facie subject to judicial review, our law recognises that not all decisions of public authorities should be governed by public law principles. The formal source of an authority's power may sometimes determine the issue. For example, if a public authority is specifically enjoined by statute to take certain matters into consideration when deciding with whom to contract, a failure in that regard will be subject to public law remedies. But if the formal source of power is not determinative then, I believe, what must be examined is the function being exercised by that public authority. In this regard, for example, see: R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] 1 All ER 564, the headnote of which reads (in part):

In determining whether the decisions of a particular body were subject to judicial review, the court was not confined to considering the source of that body's powers and duties but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions the court had jurisdiction to entertain an application for judicial review of that body's decision.

The authors of Judicial Review of Administrative Action also favour this approach, described by Mr Griffiths as the "functional approach". At para. 3-041, they say the following:

It is submitted that the court ought to have regard to the function being performed by the body whose decision is being impugned, rather than the formal source of its power ...

If what is being performed by a public authority is a "public" function then public law remedies will be available. If what is being performed is a "private" function then, in my judgement, an aggrieved party must look to its private law remedies, if any.

...

The authors of Judicial Review of Administrative Action (at para. 3-042) also recognise that if the decision being made by a public authority is a "purely commercial decision" it is unlikely that there will be any ground of domestic judicial review for a court to intervene.

The difficulty, of course, arises in identifying whether a function is "purely commercial" or whether, while clothed in the robes of commerce, it is nevertheless in truth a public function."

35. In my judgment, it is important to bear in mind the function performed by the public body in the decision made by it, which is under challenge. The closer the function in question is to the main or substantive statutory function of the public body for which it has been established in the first place, the more likely that the decision is amenable to judicial review. Conversely, if the function performed under the decision is merely incidental or ancillary to the main or substantive statutory function of the public body, it is less likely that the decision is amenable to judicial review.

36. Another relevant consideration is whether the decision or the underlying function that the making of the decision performed has statutory underpinning. Here, I do not accept Mr Lo's argument (on behalf of the Council) that the absence of statutory underpinning necessarily means that the decision is not amenable to judicial review. It is true that sometimes the legislation would set out the criteria for making a decision or provide for a procedure for the making of a decision by a public body (which may also include an appellate procedure). In such a case, it is easier to argue that the decision is amenable to judicial review. However, I do not think that that is an invariable requirement. As has been explained by Hartmann J in Lee Shing Yue Construction Co. Ltd, what is more important in the present context is the function being performed by the body whose decision is being impugned, rather than the formal source of power.

37. As has been emphasised by the authorities referred to above, if the decision is a commercial one, it is unlikely to be amenable to judicial review. On the other hand, if fraud, corruption or bad faith is alleged, then even a commercial decision by a public body may be amenable to judicial review.

38. On the facts of the present case, bearing in mind in particular the statutory functions and powers of the Council under the Ordinance, the nature of the Venice Biennale exhibition, and the reasons, objectives and aims of the Council's participation in the event, I have no doubt that the decisions made by the Council in selecting Hong Kong's representative to the event, for the purpose of receiving the relevant grant from the Council, are decisions that are amenable to judicial review.

39. In this regard, I particularly bear in mind section 4(b) concerning the implementation of strategy for the development and promotion of the arts, section 5(2)(j) regarding the disbursement of grants to organisations and individuals for the development and promotion of the arts, and section 5(2)(k) regarding collaboration and facilitation of cultural exchanges with organisations in places outside Hong Kong in the development of the arts and to secure the benefit of relevant experience from places outside Hong Kong, and the encouragement and support of others to do so where considered appropriate by the Council. In my view, they were functions performed by the Council under the decisions under challenge.

40. I do not view the decisions as involving performance of functions merely incidental or ancillary to the main or substantive statutory functions of the Council. Rather, in my judgment, the functions performed under the decisions went to the main or substantive statutory functions of the Council.

41. I do not regard the decisions in question as being commercial in nature. Whilst the grant was meant to cover, amongst other things, the curator's fee, and the successful curator was permitted, with the approval of the Council, to seek commercial sponsorship for its participation in the event, as a whole what was involved was far from commercial in nature. To the contrary, it was very much an endeavour in the arts.

42. Classifying the competition or invitation for applications embodied under the guidelines as a "tendering" process, as Mr Lo at the hearing sought to do, does not really take the matter anywhere. Of course, depending on the facts, the fact that the decision related to a tendering process might indicate that the decision in question was purely commercial in nature and thus is not amenable to judicial review. However, that is not always true. A public body could well be performing a statutory function and making relevant decisions that are amenable to judicial review even if the decisions involved tendering or other forms of commercial procedure. Thus the selection by tender of the temple keeper of a Chinese temple under the management of the Chinese Temples Committee under the Chinese Temples Ordinance (Cap. 153) did not prevent the decision from being amenable to judicial review: Fok Ho Chiu v. The Chinese Temples Committee HCAL 13/2003 (26 September 2003). Quite contrary to Mr Lo's argument, sometimes it is very important to look at the substantive function performed by the public body under the decision in question, rather than the procedure adopted (whether statutorily underpinned or not), in order to decide whether the decision involved is amenable to judicial review.

43. On the facts of present case, the functions performed through the decisions related directly to some of the main or substantive functions and powers of the Council under the Ordinance. The situation can be easily contrasted with a (hypothetical) decision made by the Council for the renovation of the Council's office premises, whether through a tendering process or not, or for instance, the retaining by the Council of a contractor to renovate the exhibition venue for the purpose of participation in the Biennale event. In these hypothetical examples, the decisions of the Council would be more akin to the keeping of the contractors' list by the Hong Kong Housing Authority in Ngo Kee Construction Co. Ltd.

44. On the other hand, the selection of the curator in the exhibition representing Hong Kong in the event would be more analogous to a decision of the Hong Kong Housing Authority allocating accommodation to competing applicants, borrowing from one of the examples cited by Cheung J in the passage extracted above.

45. For all the above reasons, I am of the view that the decisions under challenge are amenable to judicial review.

Size of the venue

46. The next issue relates to the size of the venue. I have already extracted above the relevant parts in the guidelines including the so-called "background information" (of the guidelines). There can be no doubt that the background information formed part of the guidelines.

47. On a fair and reasonable reading of the relevant parts of the guidelines, and in particular paragraph 3 of the background information, there can be no doubt that the guidelines were representing that the venue for the Hong Kong exhibition in the 2003 event would be of a size comparable to that in the preceding exhibition, namely about 3,500 sq. ft. To be fair to Mr Lo appearing for the Council, he did not seriously suggest that the guidelines should be read otherwise. But counsel did lay emphasis on the fact that the guidelines said specifically that the venue had not been confirmed.

48. The Applicant has in his earliest letter to the Council set out the importance of the size of the venue to an applicant's proposal. He wrote:

"(2) Because of the lack of information on the venue, there is no flexibilities for the potential curators to reconsider the curatorial concept, the number of artists, the design of pavilion, the presentation method and procedure, the strategy for exhibition display, the number of participants or other options, and the technical skills required for the realization of the project, for the Hong Kong Pavilion this year. All of the above mentioned details are interlocked factors one by one which conjure up an integral successful exhibition and needless to say, the utmost important competition proposal as well!

(3) As the panel of juries mentioned that the venue proposed and selected by the HKADC is merely about 100 sq. meter space (!?), it highly affects ALL OF THE CANDIDATES' PROPOSALS, including my own. For example, if there is a plan for a philharmonic orchestra performed in the theatre on the second floor of the Fringe Club or did it in the Grand Theatre in the Hong Kong Cultural Centre is absolutely two different planning approaches!

...

(5) The panel of juries and the secretariat of the HKADC SHOULD NOT argue that venue is not important and is ONLY one of the factors contributing to the curatorial concepts. If one has to say so, one would NOT be an experienced and qualified jury sitting for such competition because one must have overlooked the utmost important factor of venue space that is a primal key thing in all aspects of a successful exhibition when an experienced curator starts up any planning for a show! Venue space is just like the backbone of any curatorial concept. There are many references in history of curatorial practices telling you that this is true in doing a proper exhibition in reality.

...

(8) The serious mistake happened now in the process of interview is that the panel of juries SUDDENLY put the question to the interviewees/candidates and inquire of the way how to realize the curatorial concept, which was originally based on an assumed large space as understood in the tender brief, and from which to 'squeeze' into a small room. Please also be reminded that all proposals are written with due considerations for the detailed requirements specified in the tender brief provided by the HKADC. There should NOT be any questions on or related to the NEW assumptions or to the suddenly changed conditions without any prior notice (not even one night!) to the candidates as well as their representing team members and artists! It is a maladministration again this year for such an important international event. I can not help but recalling my memory of this event in year 2001 which had caused numerous instances of "conflicts of interests".

(9) In the focus group meeting held for organizing this event in last October, I, among other advisors, urged the HKADC should announce the venue information for the Hong Kong Pavilion in the tender brief. The HKADC failed to do so again (it also happened in year 2001, only a few selected candidates were invited and the floor plan for the desired venue was passed to the candidates only one day before the closing of submission). Furthermore, the latest information of the acquired venue is seemingly used TO BECOME AN INSTRUMENT (AN EXCUSE) to turn down those 'large scale proposals' regardless their excellent concepts and represented artists.

(10) Large Scale Proposal has DISADVANTAGES! Competing NOT on an equal basis!

It is an unfair competition when I hear that the candidates were put to the question by the juries of how to curate the exhibition, exercise the curatorial concept, and select the artist if the space reduced to only 100 sq. meter at the interview section! The question is totally out of the preparation and expectation by any curators. One cannot say it is fair because the same question was put to all candidates. Because for those whose proposals are already designed in small scale and limited number of artists have the advantages to persuade (to convince immediately) the panel of juries for winning the competition! Thus this time for the competition again is NOT a fair game at all."

49. It is true that in the proposal of the Applicant, he stated that "there is only a rudimentary plan for the work to be displayed in the exhibition due to the unknown exhibition space of which plays an important part for the consideration of exhibits". However, he explained what he meant by that and elaborated on the importance of the size of the venue to his proposal in paragraphs 15 and 16 of his 4th affirmation thus:

"15. I crave leave to refer to paragraphs 25 and 30(d) of Wong's Affirmation. I believe that Mr Wong might have misunderstood what I mean when I stated in my proposal that there was only a rudimentary plan for the works to be displayed in the exhibition due to the unknown space. It should be noted that I used the word "space" instead of "size". A site with a particular size may be in different space for our purpose depending on its shape (whether in square, rectangular or triangular shape) and the size of its walls. This will have an impact on the ultimate allocation or display of my works.

16. In any event, I want to reiterate that my proposal was prepared on the basis that the size of the Hong Kong Pavilion would be about 3,500 square feet. The ultimate size might not be exactly 3,500 square feet. It might be 3,000 square feet or 4,000 square feet, which I believe is an acceptable range of deviation within the meaning of the Guidelines. However, a very small exhibition site of only 1,000 square feet is a totally different story. My proposal would be fundamentally different to the existing ones. I might have submitted two proposals, one catering for the situation of 1,000 square feet and the other catering for the situation of 3,500 square feet. It should be noted that the Guidelines did not prohibit an applicant from submitting two proposals."

50. What the Applicant had asserted regarding the general importance of size has not really been challenged by counsel on behalf of the Council at the hearing, save to the extent that the Council maintained that an experienced curator should be able to cope with contingencies such as a sudden reduction of the available exhibition space. Indeed this was what the steering group said in its letter dated 28 February 2003 written in reply to the Applicant's letter of complaint. In the letter, the steering group wrote:

"4. As we believe that an experienced curator should be able to handle unexpected difficulties in the course of an exhibition, all potential applicants were therefore questioned on how to tackle problems such as limited preparation time, budget and space as well as the feasibility of the project proposed."

51. In the evidence filed on behalf of the Council in these proceedings, the Council sought to down play the importance of the size of venue in the mind of the selection panel. It was suggested that the panel's relevant questions regarding the adaptability of the short-listed proposals to a substantial down-sizing of the venue available to 1,000 sq. ft. were merely questions designed "to test ... [the short-listed applicants'] ability as curators to handle contingencies without adversely affecting the presentation of the concept and ideas behind their exhibition proposals" (bundle A, pp. 118-119) and they were asked on a "what if" basis. But in my judgment, there can be no doubt, on a fair and reasonable reading of the minutes of the steering group as well as the transcripts of the interviews, that the size of the venue was a material and important concern to the panellists.

52. That this should be so was only natural. The steering group had decided, no doubt for very good and legitimate reasons, that the Arsenale warehouse site, of a size of about 1,000 sq. ft., was the first choice in terms of venue. Yet, the guidelines had earlier represented (as analysed by me above) that the venue would be in the region of 3,500 sq. ft. (like that of the preceding exhibition). Understandably, the competing proposals were prepared on that basis, which was no longer valid. Given (as the Applicant has detailed in these proceedings) the importance of the size of the venue to a proposal, it was only natural and understandable that the selection panel should be concerned in the selection process about the adaptability of the proposals to the most likely venue (which was only of a size of 1,000 sq. ft.) - although nothing had been confirmed. I do not accept any attempt in the evidence filed to down play the significance of the size of the venue in the selection process.

53. It is true that in the printed assessment forms used by the selection panel in the first round of selection and marking of the competing proposals (including the proposal of the Applicant), it was expressly stated that "since information of the exhibition venue has not been notified, the use of venue should not take into account of the assessment". Yet on a fair reading of the evidence as a whole, the likely size of the venue (based on the steering group's first choice) must have been a relevant and material consideration in the mind of the selection panel even in the initial round of selection comprising only paper-marking. Notably, no evidence from members of the selection panel has been filed on behalf of the Council to deny the relevance or importance of the likely size of the venue (of about 1,000 sq. ft. only) in the mind of the panel.

Deviation from the guidelines

54. In my judgment, the selection process has deviated from the guidelines, in terms of the represented region of the size of the venue. It was a material deviation. Although the choice of the smaller venue (as the first choice) was made back in December 2002 prior to the close of applications, no effort was made to correct (or at least to retract) the information supplied in the guidelines. Yet, quite obviously on the evidence, the selection process proceeded on a likely size of the venue based on the first choice of the steering group. That nothing was confirmed until after the successful candidate had been selected is, in my judgment, really neither here nor there.

55. In those circumstances, a material part of the guidelines has been ignored in the selection process. Instead, a consideration, that was extraneous and contradictory to what had been represented in the guidelines, was taken into account and given significant weight by the selection panel in the selection exercise.

56. In my judgment, all this led to unfairness. Of course, I agree that guidelines constitute "guidance and not tramlines" (R v. Wakefield Metropolitan District Council, ex parte Pearl Assurance Plc (unreported) 5 March 1997, QBD, per Jowitt J), and the guidelines in question had no statutory force by themselves, they cannot be, in my judgment, substantially and materially deviated from, without rendering the selection process procedurally unfair, and therefore unlawful (in the public law sense).

57. What ought to have been done by the Council was to amend the guidelines by either deleting the reference to drawing from the experience of the last exhibition and the reference to the size of the last venue, or, supplying the size of the first choice of the steering group to the intending applicants (with an appropriate qualification that nothing had been confirmed yet), before the close of applications. As none of this was done, the applications ought to have been assessed on the basis of what had been represented in the guidelines.

58. On the facts of the present case, and particularly given the importance of the size of the venue to a proposal, as I said, using a likely venue size of 1,000 sq. ft. in the selection process rendered the whole process procedurally unfair and thus unlawful.

No prejudice

59. I do not agree with Mr Lo's argument that the Applicant suffered no prejudice from the selection panel's using 1,000 sq. ft. as the likely size of the venue in assessing the proposals.

60. I do not doubt that the court retains a discretion not to grant any relief in judicial review proceedings if the applicant has not suffered any real prejudice at all by reason of the public law wrong. There is no "technical" public law wrong as such. The Court of Appeal's decision in Leung Fuk Wah v. Commissioner of Police [2002] 3 HKLRD 653 is one of the best local examples where the court refused to grant relief on the ground that no prejudice whatsoever had been suffered by the applicant as a result of the public law wrong.

61. On the other hand, both the courts and leading academics have cautioned against any over-readiness on the part of the courts to refuse relief on the ground that no prejudice has been suffered. See for example, de Smith, Woolf and Jowell's Principles of Judicial Review (1999 ed.) paras. 9-033 and 9-034; Feldman, English Public Law (2004 ed.) para. 18.67, and the authorities discussed by the learned author. I have myself expressed a similar reluctance to refuse relief in Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679.

62. On the facts of the present case, and based on the evidence before me, I am not prepared to conclude that the Applicant has suffered no prejudice at all in the selection process by reason of the selection panel's using 1,000 sq. ft. as the likely size of the venue, which was information unavailable to the Applicant when he prepared and submitted his proposal. First, notwithstanding what has been printed in the marking sheet, one of the criteria in the assessment was the project's "adaptability". On a fair reading of the evidence, that must include the adaptability of the project to the size of the venue. As has been explained by the Applicant, his proposal was capable of accommodating a variation in size of about 500 sq. ft. either way, which was about 1/7 of the represented likely size of the venue under the guidelines.

63. Secondly, there is no evidence on the other proposals that had been submitted to the selection panel for its assessment, and it is therefore not known how well (or poor) these other competing proposals fared in terms of their respective adaptabilities to the size or likely size of the venue. In other words, without knowing the whole picture of the competition amongst the various proposals, it is really impossible to say or conclude that the Applicant has not suffered any prejudice from a shift of the size of the venue from 3,500 sq. ft. to 1,000 sq. ft. Specifically, it is not known, on the available evidence, how well or how poor the Applicant and other applicants would have respectively performed under the marking by the selection panel if it had proceeded on the represented basis that the likely size of the venue was about 3,500 sq. ft. Nor can it be predicted, on the evidence before the Court, how the Applicant and his fellow competitors would have respectively done under the selection process, if all of them had been made known beforehand of the likely size of the venue as being about 1,000 sq. ft. only and had thus prepared their proposals accordingly.

64. In the circumstances, I am far from being satisfied that notwithstanding the public law wrong, no prejudice whatsoever was caused to the Applicant.

65. For all these reasons, subject to the matters to be discussed in the following paragraphs, the decision to reject the Applicant's proposal is liable to be declared unlawful by this Court.

The appellate decision

66. I now turn to the challenge regarding the appellate process. But given my decision on the primary decision, my discussion in relation to the appellate process would be brief, for the simple reason that the appellate decision of the Review Committee cannot be upheld given the unlawfulness (in the public law sense) of the decision of the selection panel under challenge.

67. It may be recalled that one of the grounds of the Applicant's appeal was precisely that the selection panel had used 1,000 sq. ft. as the likely size of the venue in the selection process, contrary to the likely size of the venue represented under the guidelines. That ground of appeal was, like the other grounds of appeal (which are not relied on in these judicial review proceedings), rejected by the Review Committee. I have already extracted above the relevant reasons given by the Review Committee regarding this particular ground of appeal.

68. For the reasons given above, the grounds given by the Review Committee in rejecting this particular ground of appeal were erroneous and wrong. They did not address the gist of the Applicant's complaint. For that reason, the decision of the Review Committee is liable to be challenged.

Public announcement whilst appeals were pending

69. But the Applicant also relies on a separate ground to challenge the appellate process in these judicial proceedings. The Applicant complains that prior to the proper disposal of his appeal, the Council has publicly announced, without any qualification or reservation, the result of the selection process. Although the contract with the successful candidate was not signed until after the rejection of the Applicant's appeal, yet the undeniable fact is that prior to the disposal of the appeal, the Council, as opposed to say, the selection panel, or the Arts Promotion Committee, had already announced to the whole world that the successful applicant (Para/Site) recommended by the selection panel and chosen by the Arts Promotion Committee (upon the former's recommendation) would represent Hong Kong in the forthcoming event. There was no qualification whatsoever regarding the pending appeals (- there was at least one other appeal apart from the Applicant's appeal).

70. It should be noted that the press release announcing Hong Kong's participation in the 50th Venice Biennale (by the successful candidate as its representative) was made to the public in the name of the Counsel itself. Likewise, the speech given by a member of the steering group at the press conference held on 13 March 2003 was made "on behalf of the Hong Kong Arts Development Council".

71. It should also be remembered that under the hierarchy of the Council, both the Review Committee and the Arts Promotion Committee are committees under the Council, whereas the steering group and the selection panel were ad hoc sub-committees under the Arts Promotion Committee.

72. Furthermore, two of the members of the Review Committee were, at the material times, also members of the Arts Promotion Committee, which decided to accept the successful candidate recommended by the selection panel. Moreover, all members of the Review Committee were (and still are) members of the Council itself, under which the Review Committee works.

73. In my judgment, the making of the public announcement by (or in the name of) the Council, as opposed to any of its committees or sub-committees, in an unreserved, unqualified and unconditional manner, on the participation of Para/Site as Hong Kong's representative, under a grant to be disbursed by the Council, in the 50th Venice Biennale, when there were still pending before the Review Committee under the Council appeals against the selection result, fundamentally flawed the appellate process, particularly bearing in mind the hierarchy of the Council and its committees and sub-committees, and the common memberships amongst the Review Committee, the Arts Promotion Committee and the Council itself.

Apparent bias

74. In the recent Court of Final Appeal case of Deacons v. White & Case Ltd Liability Partnership [2004] 1 HKLRD 291, the highest court explained the test of "apparent bias" by reference to the latest English position as follows (at pp. 297I - 298E):

"20. However, recent English authority has resulted in a convergence between the English test and the test in other relevant jurisdictions. Such convergence was considered necessary in consequence of the Human Rights Act 1998, as the Court of Appeal explained in Director General of Fair Trading v Proprietary Association of Great Britain [2001] 1 WLR 700 at §85, (although the court also pointed out (at §§ 64-66) that steps in the direction of convergence had already been taken in Locabail (UK) Ltd v Bayfield Properties Ltd (leave to appeal) [2000] QB 451 at pp. 477-478). Having considered the "reasonable apprehension of bias" test developed in Strasbourg, Lord Phillips MR (giving the judgment of the Court) formulated the test applicable in England and Wales as follows (at §85):

The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

21. This shift away from the Gough test was endorsed by the House of Lords in Porter v Magill [2001] UKHL 67, which slightly amended its formulation to drop reference to "a real danger" (per Lord Hope at §103). This marked an acceptance in England and Wales, as in the other jurisdictions mentioned, that the view of the fair-minded and informed observer as to whether a reasonable apprehension of bias arises may differ from the reviewing court's own view, and that it is through the prism of such an observer's perception that the court should consider whether the case is one of apparent bias.

22. A refinement relevant to the present application was also considered in the recent authorities. As is generally accepted, the reviewing court must ascertain the facts relevant to the challenge. After those facts are found, the reasonable apprehension test is applied to those facts."

75. Having applied the test propounded by the Court of Final Appeal, I have come to the conclusion that unfortunately, what has happened in the present case, as outlined by me above, would lead a fair-minded and informed observer to conclude that there was a real possibility (or a real danger) that the Review Committee was bias in its handling of the Applicant's appeal, in that the matter had been pre-determined by the Review Committee, as evidenced by the public announcement made by the Council prior to the hearing and disposal of the Applicant's appeal.

76. The question is not, as Mr Lo has on behalf of the Council tried to persuade the Court, whether the Council could have done anything to accommodate an extra applicant as Hong Kong's representative in the Venice Biennial 2003, given that Para/Site had been unreservedly presented to the whole world as Hong Kong's representative in the exhibition, in case the extra applicant's appeal was successful.

77. The question is rather whether in the light of the high profile public announcement of Para/Site's successful candidacy and representation of Hong Kong in the exhibition at the selection of the Council, without any reference to, not to mention any reservation or qualification by reason of, the then pending appeals before the Review Committee, and given the hierarchy of the Council and its committees and sub-committees, and the common memberships relating to the Review Committee, the Arts Promotion Committee and the Council itself, a fair-minded and informed observer would conclude that there was a real possibility that the Review Committee had pre-determined the pending appeal and was thus bias. Put another way, given the press conference, the hierarchy and the common memberships, would such an observer conclude that there was a real possibility of the Review Committee not making any decision in the appeal that would go contrary to the public announcement of the Council under which the Review Committee functioned, or, one that would go against the decision made by a parallel committee in the hierarchy (namely the Arts Promotion Committee) which made the decision under appeal.

78. That said, I must emphasize that there is no question of any actual bias or predetermination in the present case. No such allegation or suggestion has been made against the Review Committee. No conclusion, whether expressed or implied, to that effect is reached or intended in this judgment.

79. But that is, for the purposes of the present issue, neither here nor there.

80. For all the above reasons, the decision made by the Review Committee on appeal is likewise, subject to the matters to be discussed below, liable to be declared unlawful.

Discretionary relief - academic question

81. I now turn to the last main issue between the parties in these proceedings, namely the discretion of the court. Two points were argued, namely academic question and delay.

82. Leaving the claim for damages aside, the Applicant asks this Court to grant him declaratory relief against the two decisions under challenge. For quite obvious reasons, he does not, nor would there be any point in so doing, ask this Court to quash the two decisions, or to order a re-run of the selection process. The 50th Venice Biennale is now mere history, this judicial review application aside.

83. Mr Lo on behalf of the Council argued at the hearing that the question of granting any declarations in favour of the Applicant is academic. There is no utility in making any such declarations. More generally, counsel argued that the court does not sit in judicial review proceedings to render academic or advisory views on matters not involving a "live" dispute between the parties before the court.

84. In Chit Fai Motors Co. Ltd v. Commissioner for Transport [2004] 1 HKC 465, Ma CJHC, giving the judgment of the court, explained the relevant principles as follows (at pp. 472C - 473G):

"20. Where it is contended, as the Commissioner has maintained in the present appeal, that the question before the court is academic or hypothetical, the following factors will feature in the court's approach (they are by no means exhaustive since this question can arise in a number of different contexts):

(1) Where a question is purely hypothetical or academic in the sense that there are simply no events that have occurred that form the basis for the question to be answered, a court will not entertain it. However relevant or even important the question may be, the court will not give an advisory opinion on hypothetical facts. There are principally two reasons for this: first, the court's function is to adjudicate on real disputes, not imaginary ones and secondly, to decide on points of law or principle when there are no facts before the court is not only undesirable, it can have unfortunate or even dangerous consequences. In this situation, the court will not have any jurisdiction to determine the question.

(2) Sometimes, however, and the present case is one, the question before the court is said to be hypothetical or academic only because the real dispute that drove the parties to litigation (sometimes called the lis) happens no longer to be in existence at the time of the hearing, even though the relevant facts giving rise to the dispute were real and had actually taken place. For example, in a civil dispute, where the defendant has openly made an offer to a claimant giving him all he is entitled to and this has been accepted, the dispute no longer exists even though it once did. The learned judge thought the question for determination to be academic in the present case since the permission granted to Kwoon Chung to operate the free bus services had expired on 12 September 2002.

(3) In the type of situation referred to in the previous paragraph, the court does have jurisdiction to hear and determine the question in issue. However, in deciding whether or not to do so (and this can be said to be a matter of discretion), the court will closely examine the relevance or utility of any decision. In the public law sphere, this may be easier to demonstrate than in relation to private rights. This is because very often in public or administrative law cases, the duties of public bodies fall to be exercised on a continuing basis not only in relation to the parties before the court but also perhaps to others in the future. In R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450, the House of Lords reviewed the relevant authorities and stated that the court had a discretion whether or not to determine the question before it even though there was no longer a lis: see 456G-H. However, the discretion was to be exercised with caution and the court should only do so where there was good reason in the public interest. At 457A-B, Lord Slynn of Hadley said this:

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

To Lord Slynn's words, I would add this. Where the same point is likely or may well arise as between the same parties, this is, if anything, a fortiori situation for the court to proceed to determine the question in controversy. In Eastham v Newcastle United Football Club Ltd [1964] Ch 413 (in many respects a public law case although it appears to have been a private litigation), Wilberforce J determined a question involving the use of restraint of trade clauses in the English Football League, even though the player in question (the famous player, George Eastham) had already moved from his former club Newcastle United (whom he sued) to Arsenal. The footballer's complaint against the transfer system was one that was likely to arise again, if not to him, then in relation to other players. A similar situation arose in R v Canons Park Mental Health Review Tribunal, ex p A [1995] QB 60, where the Court of Appeal held that the issue there should be determined even though the lis had disappeared since there was a real possibility that the same issue could arise again in relation to the applicant in that case: see 68B-F.

(4) In other public law contexts, the court may consider determining issues where, for example, there are conflicting decisions: see R v Birmingham City Juvenile Court, ex p Birmingham City Council [1988] 1 WLR 337."

85. I do not agree that the grant of the declarations sought will serve no useful purpose. At the very least, the Applicant is also claiming damages based on the breach of a contract between him and the Council in these judicial review proceedings, as he is entitled to do: see O. 53 r. 7, Rules of the High Court (Cap. 4). A declaration that the two decisions were made unlawfully because of procedural wrongs would, judging from the cause of action relied on by the Applicant to claim damages against the Council, certainly go some way towards helping the Applicant establish his claim (that is not to say that the Court considers that the Applicant has a good claim based on a breach of contract - that is still a matter to be tried: see below).

86. Moreover, apart from the Applicant's personal interest in obtaining the declarations, there is a wider consideration here. The complaints underlying the challenges in the present case cannot be said to be "one off" complaints. A broadly similar complaint regarding the size of the venue had already been made regarding the Council's handling of applications for participation in the 49th Venice Biennale: see Bundle B1, page 158, paragraph (9).

87. Furthermore, similar guidelines are, according to the evidence, commonly used by the Council in selection processes of various types.

88. Moreover, presumably, the Council will continue to take part in the Venice Biennale in future.

89. The grant of formal relief in favour of the Applicant against the Council would highlight to the Council the importance of proper adherence to published guidelines (and similar documents) and proper and due updating of information contained in published guidelines, and that of properly handling appellate procedures and announcement of selection results (subject to appeals).

90. As Mr Pun, counsel for the Applicant has submitted, it is in the interest of the public as a whole that those responsible for performing public duties and functions, like the Council, should perform them in a lawful and fair manner, since otherwise the public's confidence in the manner in which they are governed will be undermined (see Woolf & Woolf, The Declaratory Judgment (3rd. ed.) para. 4.126).

91. In my view, a formal declaration by the Court would highlight to the Council the importance of the above matter. This is particularly so given the nature of this type of cases where very often a determination by the court cannot be obtained until many months after the event in question. Sending the aggrieved applicant away in those circumstances by telling him or her that no relief can be granted because the event has already happened and one cannot, as it were, turn back the clock would send the wrong signal to everyone concerned. The grant of a declaration is, practically speaking, the only solemn and formal way by which the court can emphasize to the public body in question the importance of proper adherence to requirements of public law.

Delays - prejudice to good administration

92. Mr Lo on behalf of the Council also argued that there had been delays on the part of the Applicant in completing the standard form for filing an appeal and in applying for leave for judicial review, and thus asked the Court not to grant any relief as a matter of discretion. He referred the Court to section 21K(7) of the High Court Ordinance (Cap. 4).

93. On the evidence, I do not consider the Applicant was unduly late in completing the form for appeal and returning it to the Review Committee.

94. The time taken for his filing (in person) his application for leave to apply for judicial review is wholly understandable given his application for legal aid. When he found the result was still pending, he lost no (further) time in putting in an application in person prior to expiry of the 3 months limit. The Applicant cannot be criticized for the time lost in the process.

95. Moreover, having borne in mind the discussions of the meaning of "prejudice to good administration" in cases like R v. Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 AC 738, 749F-750A and R v. Monopolies and Mergers Commission, ex parte Argyll Group Plc [1986] 1 WLR 763, 774D-775B, I can find nothing in terms of prejudice to good administration if this Court is to accede to the Applicant's claim for declaratory relief. Quite to the contrary, the grant of the declarations sought would highlight to the Council the importance of adherence to well established public law principles in performing its statutory functions and exercising its statutory powers set out under the Ordinance.

Outcome

96. For all these reasons, I am prepared to grant the following declarations in favour of the Applicant:

(1) the decision of the Council set out in its letter dated 30 January 2003 to the Applicant rejecting the Applicant's application for the curatorship of the Hong Kong exhibition in the 50th Venice Biennial (Visual Arts) was unlawful;

(2) the decision of the Review Committee of the Council set out in its letter dated 7 April 2003 to the Applicant dismissing the Applicant's appeal against the aforesaid decision of the Council was unlawful.

97. As regards the claim for damages, for reasons that I have already orally given during the hearing, I would exercise the Court's discretion under O. 53 r. 9(5) and order the present proceedings, in so far as they relate to the claim for damages based on the breach of a contract between him and the Council, to continue as if they had been begun by writ.

98. I further direct the parties to submit (if possible) an agreed set of directions regarding the filing of pleadings and further steps to be taken in the proceedings so continued as aforesaid, for the Court's approval. Failing agreement, the parties shall be at liberty to apply to this Court for directions.

99. My above direction does not prejudice any application, if deemed appropriate, for the transfer of the remaining proceedings (for claim of damages) to the District Court (or even the Small Claims Tribunal) for further prosecution and adjudication, depending on the quantum of the Applicant's claim for damages.

100. Finally as regards the costs of the proceedings (incurred thus far), I make an order nisi that the same be paid by the Council to the Applicant; such costs are to be taxed if not agreed. I also order legal aid taxation of the Applicant's own costs.

101. I thank counsel on both sides for their helpful assistance.