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HCAL 61/2005
IN THE HIGH COURT
OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 61 OF 2005
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| BETWEEN |
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CHENG’S EDUCATIONAL FUND LIMITED |
Applicant |
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and |
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SECRETARY FOR EDUCATION AND
MANPOWER (教育統籌局局長) |
Respondent |
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Before: Hon Reyes
J in Court
Date of Hearing: 26 August 2005
Date of Judgment: 2 September 2005
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J U D G M E N T
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I. Introduction
1. The Applicant (CEF) is a charity. It operates the Hong Kong Cheng's
Clansmen General Association Cheng Jack Yiu School, an aided primary school
(APS). CEF applies to review 2
decisions by the Respondent (PSEM) of the Education and Manpower Bureau (EMB).
2. By the 1st decision the PSEM refused
to allow the School to operate a Primary 1 class in the 2005-06 school
year. The 1st decision is
evidenced by letters dated 1 and 21 March 2005 from the PSEM to CEF.
3. By the 2nd decision the PSEM rejected
the School’s proposal to operate a Primary 1 class in 2005-06 on private funding
instead of under the APS scheme.
The 2nd decision is evidenced by a letter dated 15 June 2005
from the PSEM to CEF.
4. Under “tightened criteria” recently introduced
by EMB, in the absence of special factors, a school within the APS scheme may
not operate a Primary 1 class of fewer than 23 pupils.
5. The School has the capacity to run
several primary 1 classes.
However, since starting in 2000, the School has only been able to enrol
enough Primary 1 students for a single class. During the allocation exercise for the 2005-06 academic
year, the School attracted 22 Primary 1 pupils. Following the deadline for student allocation, the School
managed to find an additional Primary 1 student.
6. CEF raises 4 specific issues on this
judicial review:-
(1) Whether
the “tightened criteria” contravene the Education Ordinance (Cap.279) (EO) and
the Basic Law (BL).
(2) Whether
the PSEM acted unreasonably in refusing to allow the School to operate a
Primary 1 class despite the existence of “special factors”.
(3) Whether
the PSEM was unreasonable or acted in a manner that was procedurally improper
in refusing to allow the School to operate a Primary 1 class under private
funding.
(4) Whether
the PSEM's refusal to allow the School to run a Primary 1 class in 2005-06
(either under the APS scheme or private funding) breached CEF’s legitimate
expectations.
II. Background
7. On 25 February 1992 CEF applied for
the allocation of a school by the Education Department (ED).
8. On 9 September 1997 the ED allocated
the School in Ma Hang at Stanley to CEF.
The School was built to the Government’s Millennium Design and comprised
30 classrooms. CEF contributed
over $4.6 million towards the setting-up of the School.
9. The ED handed over the School to CEF
in January 2000. The School
started to enrol students from February 2000.
10. In May 2002 projections released by
the Census and Statistics Department indicated that the population of primary
school students in Hong Kong would decrease by some 17% between 2002 and 2010.
11. In October 2002 the Audit Commission
released a report on “Primary Education -- Planning and Provision of Primary
School Places”. The Report noted
that many primary schools were under-utilised. It recommended that the Director
of Education (as the PSEM was then designated) critically review the situation
of vacant classrooms and consider the feasibility of merging and phasing out
primary schools. The Director was
asked to identify alternative uses for school premises made vacant through
merger or phasing out.
12. On 2 and 9 December 2002 LegCo’s
Public Accounts Committee (PAC) held 2 hearings to take evidence on the issues
raised by the Audit Commission’s Report.
At the time, the PSEM informed the PAC that the Government planned to
adjust the threshold for operating Primary 1 classes from one-half to
two-thirds of a standard class.
The standard class size is 32 for those adopting an activity approach and
37 for those following a conventional approach.
13. After consultation with the Subsidised
Primary School Council and the Primary One Admission Committee, by Circular No.
17/2003 dated 27 January 2003 the PSEM raised the threshold for Primary 1
classes to a minimum of 23 pupils.
As a result, where a school had a Primary 1 class of fewer than 23
pupils and there were still unfilled Primary 1 places within other schools in
the same school net (district), “the school may not be allowed to operate that
class”.
14. In February 2003 the PAC released its
report. The PAC asked to be kept
informed of the progress of actions taken by the EMB to ensure that the
standard class size was adhered to as far as possible. The PAC also wished to monitor the
PAC’s measures to ensure the cost-effectiveness of the School Improvement
Programme.
15. In the 2004-05 academic year,
Districts 18 and 19 of the school net were merged. Until then, the School had belonged to District 19, covering
Repulse Bay, Stanley, Chung Hom Kok, Shek O and Tai Tam. The merged district combined the latter
areas with Pok Fu Lam, Baguio Villa, Aberdeen, Tin Wan, Shek Pai Wan, Ap Lei
Chau, Wong Chuk Hang, Shouson Hill and Deep Water Bay.
16. There had been 3 schools in District
19. The merged district has 15
schools. In District 19, the
School ranked 2nd out of 3 on the parental choice index. Following the merger, the School ranked
15th (last) out of 15.
17. On 16 August 2004 the PSEM wrote to
primary schools to explain when a school might be allowed to operate a Primary
1 class even if it had fewer than 23 students. The PSEM stated:-
“If the total number of Primary 1 classes on applying the
23-threshold is insufficient to meet the demand in a school net, some schools
may still be allowed to operate a Primary 1 class even though the number of
children allocated to it is below 23.
In such cases, consideration will first be given to special factors such
as whether the school is located in a remote area where there are no
appropriate alternative schools.
After taking into account the special factors, the selection of schools
to operate Primary 1 class will be based on the parental choice index (details
at Appendix 1) in the central allocation stage. If the parental choice indices happen to be the same for
some schools, the schools with the greater remaining number of children
allocated will be given higher priority for the operation of the additional
Primary 1 classes.”
18. The reference to the Central
Allocation (CA) stage in the PSEM’s letter was to the 2nd stage of the annual
Primary One Admission (POA) exercise.
In the 1st stage (Discretionary Places Admission (DPA)), pupils may
apply to a school of their choice.
About 50% of the Primary 1 places at a given school are available for
DPA applicants. In the 2nd
stage, children who have not found a place through DPA, are allocated a school
by computer, based on parental preferences indicated on an application form.
19. At the end of the POA exercise for
2005-06 school, the School had secured 22 Primary 1 students, 15 through DPA
and 7 by CA.
20. The School having attracted fewer than
23 Primary 1 students, by letter dated 1 March 2005 the PSEM proposed that the
School not run a Primary 1 class in 2005-06. The School was asked to respond by 15 March.
21. At a meeting on 9 March 2005 with the
School, EMB set out options in the event that the School wished to run a
Primary 1 class with fewer than 23 students.
22. The 1st option was to apply
for Special Review. Under this
option, the School would need to have the quality of its education
assessed. If the assessment was
“good” overall, the School could be permitted to participate in the POA
exercise for 2006-07.
23. The 2nd option was to join
the Direct Subsidy Scheme (DSS).
However, the subsidy is based on student enrolment, so this option
entails a risk of financial instability.
24. The 3rd option was to apply
to run a privately-funded Primary 1 class. Under this option, CEF would be responsible for all expenses
of the Primary 1 class. This route
required the School to show not just that it had enough financial support, but
also that it could provide quality education.
25. The 4th option was to merge
with other institutions.
26. By letter dated 10 March 2005 the PSEM
again invited the School to comment by 15 March on the proposals in the letter
of 1 March 2005. The PSEM noted:-
“If your School eventually fails to operate Primary One class in the
2005/06 school year, our Bureau will, pursuant to the current policy, stop
granting subsidy of any kind to your School after a few years. If you wish to continue operation of
your School, you may consider the arrangements set forth as follows:…”
The PSEM then summarised the 4 options discussed on 9 March 2005.
27. An annex to the 10 March 2005 letter,
set out what information a school would have to provide in support of a Special
Review. The annex included the
following (in agreed translation):-
“1. The
School is to prove that the education provided meets the need of students'
whole person development (including academic and non-academic performance and
standard), and with quality.
2. The
School is to demonstrate its merits and weaknesses in the four working fields
(i.e. management and organization, learning and teaching, school discipline and
students’ support, and students' performance), and illustrate the tactical
measures implemented to match the concerned main issues during the past three
years.
3. The
School is to, according to the current school development plan, illustrate
concisely the items for promoting school education quality.
4. The
School is to illustrate the methods for ensuring the management efficiency of
the school management.”
28. By letter dated 14 March 2005 the
School asked the EMB to re-consider the proposal to disallow a Primary 1 class
in 2005-06. Detailed reasons were
advanced in support of the School’s position.
29. A meeting between representatives of
the EMB and the School (among other persons) took place on 21 March 2005. The meeting explored whether Lingnan
Primary School could merge with the School.
30. Minutes of the 21 March meeting
prepared by CEF allege that the School orally applied for a Special Review at
the meeting. Ms. Ip of the EMB is
recorded by the same minutes as having declined the application straightaway
without giving reasons, albeit mentioning that the School’s External School
Review had just been completed in February 2005.
31. The PSEM denies the accuracy of CEF’s
minutes of the 21 March meeting.
More specifically, EMB denies that an application for Special Review was
made at the time.
32. By letter dated 21 March 2005 the PSEM
rejected the School’s appeal to be allowed to run a Primary 1 class. The PSEM said that, having considered
the matter in detail, there were insufficient grounds to justify permitting the
School to run a Primary 1 class with fewer than 23 students. This is the 1st of the decisions
against which judicial review is sought.
33. On 31 March 2005 representatives of
the School and EMB met again. CEF
made it clear then that, in view of the uncertain future of the School, CEF was
not prepared to inject additional funds into the School. For this reason, CEF said that it was
not interested in joining the DSS or operating a privately funded Primary 1
class.
34. The Government’s minute of the 31
March 2005 meeting records that:-
“Special review was also not considered as the school's ESR
[External School Review] had just been completed before the release of the
class structure for 2005/06.”
35. At some point in March 2005
(apparently after the School wrote its letter of 14 March 2005) the School
found a 23rd pupil for its proposed Primary 1 class in 2005-06.
36. On 15 April 2005 the School wrote to
EMB, applying to operate a privately-funded Primary 1 class. The letter provided information for
EMB’s assessment and approval under the following headings and sub-headings (in
agreed translation):-
(1) “Regarding
the learning environment and facilities”
(a) “Learning environment”
(b) “Community services”
(2) “Regarding
providing quality education”
(a) “Using community resources,
implementing life-wide learning out of the classroom and supporting education
in society -- the Way Forward of Educational Reform”
(b) “Academic exchange programme with
Hong Kong International School”
(3) “Regarding
the financial support”
(a) “Portion of Salary Grant for
teaching staff”
(4) “The
financial arrangement of the operation of Primary 1 class with private fund
after promoted to Primary 2”
(5) “Catering
the preference of choice of the parents of the pupils admitted by our school
during the Discretionary Places Admission stage”
(6) “Conclusions”
37. On 19 April 2005 there was another
meeting between representatives of the School and EMB. The School pointed out that its
application to have a privately-funded Primary 1 class “was to show that it had
complied with all EMB's required procedures”. CEF repeated that in fact it had no wish to inject further
money into the School. If EMB approved the application, the School “would seek
consents from teachers to share out the workload and parents to support the
arrangement”.
38. To assess the School's application to
run a private Primary 1 class, EMB sent a Vetting Committee to interview the
School’s staff in May 2005. The
Committee consisted of EMB officers, headed by the Principal Assistant
Secretary (School Development).
The interviews were intended to afford the School with a chance to
supplement and explain the details of its proposed private Primary 1 class.
39. On 15 June 2005 the PSEM rejected the
School’s application to run a privately-funded Primary 1 class. The letter stated (in agreed
translation):-
“The assessment group [that is, the Vetting Committee] considers
that, despite that your School has shown the sincerity and efforts to continue
school operation, the plan submitted by your School has failed to prove that
the School has the ability to provide quality education to the students. Therefore, our Bureau decides not to
allow your School to operate Primary One Class with private fund. Regarding the assessment main points of
the assessment group on your School's concrete plan, please refer to the
annexure.”
40. The annexure to the 15 June 2005
letter read as follows (in agreed translation):-
“After assessment of the plan submitted by the School and meeting
with the School's representatives on 25th May this year, having verified the
information and grounds supplied by the School, the assessment group has very great
reservation on whether the School has sufficient ability to provide quality
education for the intended operation of Primary 1 with private fund.
(a) The
plan submitted by the School was not concrete. There was not any school strategy for successive improvement. The School could not identify its
weaknesses and need for concern items; on contrast, the plan only listed out
the School's well-equipped fixtures and facilities and location convenience to organise students' activities, as well as the usual learning programmes, for
example, the students’ personal e-profiles, the extra-curriculum activities and
the exchange programme with the Hong Kong International School, etc for the
evidence claimed as quality education.
Assessment group believed that those were only counted as regular
activities, which could not show any connections between the various programmes
and the effectiveness of the learning and teaching aiming at the School’s
weaknesses and its improvement as well as its provision of quality education.
In
the plan and during the meeting with the assessment group, the School emphasised that there were great differences among the students’ learning. But the School could not provide
improvement measures in detail, for example, the school-based curriculum plan
and the teaching pedagogy, to take care of the different needs of the
students. Though the School learnt
that the students left behind the standard a little bit in Chinese, English and
Mathematics but the head teacher could not fully utilise the figures of the
Basic Competence Assessment made by the students and the Hong Kong Aptitude
Test to analyse the students’ performance so as to find out the need to improve
learning and teaching and formulate successive improvement measures. In addition, the School attributed the
learning differences among the students to students’ families’ background. Although the School had arranged
various learning activities outside classrooms to broaden the students’ views,
the school could not introduce appropriate curriculum strategies to fit the
activities concerned and upgrade the students’ learning performance.
To
sum up, the plan submitted by the School only overall outlined the direction
for development but without bringing out successive improvement strategies.
(b) The
assessment group doubted whether the teacher’s team of the School could have
sufficient ability and would take up the responsibilities to implement the
relevant plan. Upon the meeting with the assessment group, the School pointed
out that the job mobility of the teachers was quite high and the serving
teachers were generally [in] lack of teaching experience. Based on these, the
School initiated the suggestion of peer counselling and encouraging teachers’
further their studies so to enhance their teaching professionalism. However, the School had not clearly
clarified its staffing problem and analysed in detail the rooms to be improved
by the teachers and also could not formulate effective and successive measures
to strengthen and uphold the teachers’ team spirit. (c) Although
the Supervisor is devoted to the school management and the school managers,
viz. Mr. Leung Chun Wai, et al., are willing to exchange and share professional
knowledge with the serving teachers, the management in the School could not
have a systematic analysis to the weaknesses of the School and prioritise the
items concern appropriately and also be lack of successive improvement
strategies and measures to upgrade the effectiveness of the students’ learning. The assessment group has reservation on
whether the School has ability to provide quality education.
Concerning
the School’s need of the financial support to the application for operation of
Primary 1 class with private fund, upon the meeting between the assessment
group and the School, the assessment group learnt that the School believed at
this stage the teachers’ professionalism and devotion were more essential than
the financial responsibility.
(d) In
view of the overall performance of the headmaster, the assessment group has
great doubt on his professional leadership and his capability for the school’s
improvement and his leading the school to operate Primary 1 class with private
fund."
41. The 15 June 2005 letter is the 2nd
decision against which judicial review is sought.
III. Discussion
A. Issue
1: Contravention of EO and BL?
42. According to its preamble, the EO’s
functions are as follows:-
“To promote education in Hong Kong, and to consolidate and amend the
law relating to the supervision and control of schools and teaching therein,
and for purposes connected therewith.”
43. BL art.56 provides:-
“Except for the appointment, removal and disciplining of officials
and the adoption of measures in emergencies, the Chief Executive shall consult
the Executive Council before making important policy decisions, introducing
bills to the Legislative Council, making subordinate legislation, or dissolving
the Legislative Council.”
44. Mr. Scott SC (appearing for CEF) says
that there is no evidence that the Chief Executive consulted ExCo before Government
promulgated the 23-pupil threshold for Primary 1. He suggests that, since the “tightened criteria” will lead
to the demise of many schools and the redundancy of many teachers, the 23-pupil
limit is an important policy decision which could only have been implemented
after consultation with ExCo. He
therefore concludes that the “tightened criteria” contravene BL art.56 and are
illegal.
45. In support of his argument, Mr. Scott
refers to EO s.84(1). This
stipulates that:-
“The Chief Executive in Council may make regulations providing for:-
....
(h) the
size of school classes and the number of pupils permitted in classroom;
...”
46. EO s.84(1)(h) indicates (Mr. Scott
says) that the size of Primary 1 classes is an important policy matter on which
the Chief Executive can only act after consulting ExCo.
47. I am not persuaded by Mr. Scott’s
analysis.
48. First, I do not think that EO s.84(1)
helps in determining what is or is not an important policy matter. That an item appears in EO s.84(1)
cannot mean that it is a matter of high policy. For example, EO s.84(1)(o) allows the Chief Executive in
Council to regulate “school holidays”.
No one would suggest that changes to school holidays constitute
“important policy decisions” within BL art.56.
49. “Important policy decisions” should
instead involve matters having a wide and profound impact on the well-being of
Hong Kong people generally. I do
not think that the Government’s administrative policy on the minimum number of
students in a primary school class is of that order of magnitude.
50. Second, contrary to what Mr. Scott
suggests, the “tightened criteria” do not frustrate the EO’s purpose of
promoting education. As Mr. Yu SC
(appearing for the PSEM) points out, none of the decisions challenged results
in any child failing to receive a proper education. Nor is CEF claiming that the School offers an education of
superior quality which is not available from any other school in Hong Kong.
51. The harsh reality is that Government
has only limited resources for education.
There is a high cost to operating schools below capacity. Savings achieved by withdrawing grants
to under-enrolled schools would minimise the need for budget cuts among schools
generally. The financial resources
freed up as a result of rationalising school funding and subsidies could then
be used to improve overall quality of education in Hong Kong.
52. Accordingly, in my view there is no
contravention of the EO or BL.
B. Issue 2: PSEM
unreasonable on 1st decision?
53. Mr. Scott argues that it was
irrational for the PSEM not to permit the School to run a Primary 1 class
despite 3 special factors.
54. The 3 factors identified by Mr. Scott
are:-
(1) The
fact that the School is a new institution.
(2) The
merger of Districts 18 and 19.
(3) The
fact that the School managed to find a 23rd pupil in mid-March 2005.
55. Mr. Scott does not say that the PSEM
was unaware of (or failed to consider) these 3 factors. Mr. Scott submits that the 3 factors
are so compelling that any reasonable PSEM would have allowed the School to
operate a Primary 1 class on the basis of the 3 factors. It follows (Mr. Scott submits) that, in
deciding the contrary, the PSEM was Wednesbury unreasonable.
56. I do not agree with Mr. Scott’s
submission. Let me consider each
factor.
57. As far as newness is concerned, the
School has already had 5 years in which to promote and establish itself. Over that period, it has failed to
attract sufficient students to run more than a single Primary 1 class in an
academic year. According to EMB's
records, since its commencement, the School’s performance has only been
“mediocre” and it has not been popular with parents.
58. Mr. Scott suggests that the School
should have been given at least 6 years (corresponding to the 6 years of the
primary school cycle) to prove itself.
But, especially given the School’s track record, I do not think that a
decision to disallow the running of a Primary 1 school after 5 years can be
classified as perverse or unreasonable.
59. As for the combining of Districts 18
and 19, Mr. Scott has an initial difficulty. The merger is not identified in the School’s Form 86A Notice
for judicial review as a factor which the PSEM ought to have taken into account
in coming to any decision.
60. Mr. Scott fairly accepted that, if a
matter was not raised in the Form 86A Notice, he could not rely upon on it as a
ground for judicial review.
Therefore, it is not open to the Applicant to argue the merger of
districts as a basis for the irrationality of the PSEM’s 1st decision.
61. Assume, however, that it was open for
Mr. Scott to take the point. Even
then it is difficult to see how it helps his case.
62. Mr. Scott’s argument is that the
merger meant that, suddenly, the Applicant had to contend with more competitors
for primary school pupils. Instead
of only 3 schools vying to attract students in the old District 19, there are
now 15 institutions seeking students in the merged District 18. The PSEM (Mr. Scott submits) ought
accordingly to have given the School special consideration.
63. In my view, the argument is
flawed. It is hard to see how the
merger of Districts 18 and 19 can be a special factor.
64. First, it is true that there may be
more schools in the new net. But
the net covers a larger area. The
number of potential pupils in the merged district is significantly greater. The
School has more students which it can hope to attract. It does not follow (as Mr. Scott
suggests) that the School has been disadvantaged by the merger.
65. Second, if anything, the evidence
before me suggests that the School has been able to compete for students
following the merger. The merger
took place in 2004. The School did
not voice any dissatisfaction with the merger. On the contrary, it managed to obtain 29 Primary 1 pupils
for the 2004-05 school year. This
indicates that the School could cope with the consequences of the merger.
66. Finally, as to the 23rd pupil found by
the School, a line has to be be drawn at some point. Exercising their discretion, different persons may
reasonably draw the line differently.
The PSEM thought that finding a 23rd student after the deadline for the
POA exercise had passed, was not a sufficiently remarkable factor. Another person might have been prepared
to give weight to such circumstance.
I am unable to say that, in deciding as the PSEM did, the PSEM acted
unreasonably.
67. The PSEM could be fully justified in
taking a hard line.
68. For example, Mr. Yu submits that,
allowing schools to scramble for students to make up the 23 student quota after
the annual POA exercise, would undermine the integrity of deadlines. The
orderly administration of the POA system would be at risk if schools believed
that they could simply ignore deadlines.
69. The PSEM may well have had such
concerns in mind when rejecting the late acquisition of a 23rd student by the
School as a compelling factor. I
do not think that such consideration can be dismissed as self-evidently wrong
or irrational.
70. For the above reasons, I do not think
that the PSEM acted unreasonably in coming to the 1st decision. I do not believe that the 3 factors are
compelling or overriding circumstances.
C. Issue 3: PSEM
unreasonable on 2nd decision?
71. Mr. Scott says that the Vetting
Committee did not fairly assess the School’s plans for a privately funded
Primary 1 class. The Committee (Mr. Scott contends) examined matters (for
instance, whether the School had identified its weaknesses and formulated a
plan to address those weaknesses) which the School had not been notified would
be evaluated.
72. Mr. Scott accepts that the Committee
was entitled to consider whether the School could provide “quality
education”. But Mr. Scott
criticises the concept of “quality education” as too vague and subjective to
form any basis for a refusal to allow a private Primary 1 class.
73. In my view, there is no substance in
Mr. Scott’s criticisms. I have set
out the Committee’s comments in full in Section II of this Judgment. It seems to me that the Committee
carefully considered the School’s circumstances. It came to a reasoned conclusion on the School’s
prospects. There was nothing
superficial in the investigation which the Committee carried out.
74. The Committee expressed “doubts” and
“reservations” over the School’s ability to run a private Primary 1 class of
acceptable standard. Mr. Scott
suggests that these “reservations” could have been clarified and did not merit
the outright rejection of the Schools private funding proposal. But, read in context, I think that the
“doubts” and “reservations” in the Committee’s report were merely a polite way
of saying that the Committee was unimpressed by the School. The Committee did not think that the
School should be allowed to run a private Primary 1 class.
75. Mr. Scott suggests that, in drafting
its letter of 14 March 2005, the School was guided by the criteria set out in
the PSEM's letter of 10 March 2005.
If so, then (contrary to what Mr. Scott submits) the School would have
been aware that it was supposed (in accordance with the annex to the 10 March
letter) to identify teaching weaknesses and state how the School proposed to
deal with such problems.
Accordingly, I do not think that the Committee applied evaluation
criteria which would have caught the School by surprise.
76. Mr. Scott suggests that there were
other procedural improprieties in relation to the 2nd decision. He identifies these as follows:-
(1) EMB
representatives breached a promise not to contact the 15 parents with children
enrolled at the School under the DPA for 2005-06.
(2) EMB
refused a Special Review for no good reason.
(3) The
Committee consisted entirely of EMB representatives.
77. Let me briefly consider each of the
alleged improprieties.
78. There is a dispute between the parties
whether EMB promised not to contact parents of DPA children. EMB says that it did not so promise,
the School says that it did.
79. It is hard to believe that EMB would
have promised not to contact the parents of DPA pupils. It would have been irresponsible for
EMB not to contact parents, since the latter had to be told as soon as possible
that it was unlikely that the School would be running a Primary 1 class in
2005-06. The parents would need
advance notice to make alternative arrangements.
80. But assume that EMB made the alleged
promise. Even then, I do not see
what causative bearing that could have had on the 2nd decision so as
to render the 2nd decision unreasonable.
81. As I have mentioned above, there is a
dispute between the parties on whether the School’s request for a Special
Review was rejected outright without reasons by EMB. But assume that a request for review was rejected as CEF
alleges. Again I do not see what
difference that would make, as far as the 2nd decision (which
relates to private funding) is concerned.
No judicial review is sought against any refusal to conduct a Special
Review.
82. On the composition of the Vetting
Committee, it is unclear why the mere fact that it consisted of EMB representatives
renders its decisions and recommendations unfair to the School. EMB personnel are probably in the best
position to judge whether a particular school is or is not performing in
accordance with territory-wide norms and standards.
83. I have so far dealt substantively with
Mr. Scott’s complaints on the 2nd decision. There is, however, an additional
difficulty to surmount. That is
the fact that many of the matters raised in submission do not feature in CEF's
Form 86A Notice.
84. The points now made about quality
education and the superficiality of the Vetting Committee’s inspection are an
example of this. The Form 86A
Notice only challenges the application of quality education as a
criterion. Mr. Scott now
acknowledges that quality education could be used as a criterion, but questions
whether it is a sufficiently objective standard. Had the PSEM known that CEF would be changing its case to
that extent, the PSEM could have adduced affidavit evidence about the use of quality
education as a standard, to rebut Mr. Scott’s points. Strictly, it is unfair for me even to
consider CEF’s new points on quality education. On this basis alone, CEF’s transmuted case on quality
education must fail.
85. For the above reasons, I do not think
that the PSEM was unreasonable in coming to the 2nd decision.
D. Issue 4:
Legitimate expectation?
86. CEF says that, in accepting CEF’s
contribution of $4.6 million towards setting up the School, EMB implicitly
represented that CEF would have a reasonable time to develop the School. CEF contends that the acceptance of the
$4.6 million therefore gave rise to a legitimate expectation that the School
would be allowed to run Primary 1 to 6 classes for at least 6 years.
87. A representation giving rise to a
legitimate expectation can be implied by conduct. But the representation must be clear and unambiguous.
88. I do not think that the representation
suggested by CEF can be implied from EMB's conduct in allowing CEF to run a
School. In particular, I do not
see how the conduct highlighted by CEF could amount to a clear and unambiguous
representation that the School would be allowed to run Primary 1 to 6 classes
for at least 6 years. On the
contrary, the obvious inference to be drawn from EMB authorising CEF to run the
School would be that the School was to abide by the POA system in effect at any
given time. Such system would
include any threshold limits for Primary 1 students.
89. But assume that a representation can
be made out of EMB’s conduct. At
best, it could only be a representation to the effect that the School would
have a reasonable time to start itself up. There is no evidence that anyone mentioned 6 years or any
specific period as the time during which the School would be allowed to operate
before its viability was queried.
90. In those circumstances, as stated
above on Issue 2 in relation to newness as a special factor, I do not think
that it can be said that EMB was unreasonable in not permitting the School to
run a Primary 1 class after 5 years.
Five years cannot be described as too short a “grace period” for the
School to prove itself.
91. I do not believe that CEF had a
legitimate expectation to be allowed to run Primary 1 classes for at least 6
years. If there had been an
expectation that the School was to have a reasonable time in which to establish
itself, 5 years was adequate for that purpose and there could have been no
breach of any such expectation by the PSEM’s decisions.
IV. Conclusion
92. The grounds for the judicial review
have all failed. CEF’s judicial
review application is dismissed.
There will be an order nisi that CEF is to pay PSEM’s costs, such costs
to be taxed if not agreed.
| |
(A. T. Reyes)
Judge of the
Court of First Instance
High Court |
Mr. John Scott S C, leading Mr. Richard Leung, instructed by Messrs. T H
Wong & Co., for the Applicant.
Mr. Benjamin Yu S C, leading Ms Grace Chow, for Secretary for Justice,
for the Respondent.
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