LAW CHI YUEN (formerly known as LAW O KI) BY WONG SIN HIS NEXT FRIEND v. SECRETARY FOR EDUCATION

HCAL 91/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 91 OF 2011

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J U D G M E N T

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A.  INTRODUCTION

1.  The applicant suffers from mild grade intellectual disability (“ID”).  He studies as a Primary student at HHCKLA Buddhist Po Kwong School (“the School”).  The School is a special school providing education for mild and moderate ID students, who have special educational needs (“SEN”) at both Primary and Secondary levels.

2.  The Education Bureau (“EDB”) (formerly the Education Department) has implemented the Native-speaking English Teacher (“NET”) Scheme (“the NET Scheme”) in the public sector Secondary and Primary schools in Hong Kong respectively in the 1998/99 school year and the 2002/03 school year.  Under the NET Scheme, upon a successful application of a school, the EDB would approve the funding of providing one or two NETs (depending on the number of classes in the school) to that school.  The provision of NETs to schools is to enhance the teaching of English Language and increase exposure of students to English.  I would look into more the details underlying the NET Scheme and the duties of a NET later in this judgment.

3.  In April 2011, the School applied to join the NET Scheme for Primary schools given that it had been teaching English Language as a Core subject to its pupils under its school-based curriculum since the 2007/08 school year (“the School’s NET Application”).

4.  On 26 July 2011, the Secretary of Education (“the Secretary”) rejected the School’s NET Application (“the Decision”).  It is stated in the rejection letter (“the Rejection Letter”) that under its existing policy, the NET Scheme does not cover special schools for ID students in light of their special curriculum, different educational needs, and not being included as schools offering English Language as part of the Basic Education Curriculum.  Upon the school’s request for reconsideration, the EDB on 14 October 2011 reaffirmed the Decision.

5.  On 25 October 2011, the applicant applied for leave to judicially review the Decision.

6.  On 15 March 2012, Lam J (as the learned VP then was) granted leave on the grounds set out in a substantively revised Amended Form 86.[1] The challenge is mounted on the principal basis that the Decision is unlawful as it is discriminatory against the applicant on the basis of his ID, which is prohibited under the Disability Discrimination Ordinance (Cap 487) (“DDO”), the Basic Law (“BL”) and the Bill of Rights (“BOR”).

7.  In this judicial review, the applicant (represented by Mr Dykes SC together with Mr Valentine Yim) seeks the relief of:

(1) A declaration that the Decision contravenes section 6 of the DDO or is unconstitutional as it is inconsistent with Articles 25 and 39 of the BL and Article 22 of the BOR.

(2) A declaration that, on a rectifying interpretation, sections 6(a) and 6(b)(i) of the DDO permit a challenge of which can be described as inter-disability discrimination.

(3) An order of certiorari to quash the Decision and that the School’s NET Application be remitted to the Secretary for reconsideration in light of the court’s findings in this judicial review.

8.  The Secretary (represented by Ms Wong SC, together with Mr Mike Lui) opposes this application.  Pursuant to the leave granted by Lam J, the Equal Opportunities Commission (“EOC”) appears in this application as Amicus Curiae and is represented by Mr McCoy SC, leading Ms Denise Souza.

9.  The parties have since filed voluminous evidence over a number of rounds,[2] and the substantive hearing of the application was fixed on 9 March 2015 for three days.

10.  To properly understand the arguments raised in this judicial review, it is necessary to start with some relevant background first.

B.  BACKGROUND

B1.  The special schools and mainstream schools

11.  A special school is defined under section 3 of the Education Ordinance (Cap 279) as a school that has been approved by the Permanent Secretary for Education to provide education for pupils through a special education curriculum.  The pupils attending special schools are those with SEN.  For the present purposes, these pupils are those who have learning difficulties by reason of intellectual disability (ie, ID) or disabilities not related to intellectual disability (“Non-ID Disability”)[3] or a combination of both.

12.  Other than the special schools, all other schools offering Primary and Secondary education are classified as “mainstream schools”.

13.  It is the Government’s policy to place children with severe learning difficulties and multiple disabilities in special schools for more intensive support.  Children who can benefit from learning in the ordinary school setting are enrolled in mainstream schools.[4]

14.  However, other students with SEN who can benefit from studying in mainstream schools may choose to participate in relevant school places allocation systems.  The number of such disabled students studying in mainstream schools is however very small.[5]

15.  There are special schools (“ID Schools”) which are catered for ID students only.  The other special schools (“Non-ID Schools”) are for Non-ID Disability students.

16.  In relation to ID Schools, the EDB adopts a three-tier classification:

(1) Schools for children with mild ID (ie, IQ level 50 - 69);

(2) Schools for children with moderate ID (ie, IQ level 25 - 49); and

(3) Schools for children with severe ID (ie, IQ level below 25).

17.  In the 2011/12 school year, there were 457 Primary schools, 400 Secondary schools and 60 special schools.

18.  All mainstream students enjoy 12 years of Primary and Secondary education (six years Primary and six years Secondary). ID Schools similarly offer their students a 12-year academic structure (including six years of Primary, three years of Junior Secondary and three years of Senior Secondary education).

B2.  The curriculum reform in 2001 and “the One Curriculum Framework for All” principle

19.  After conducting a holistic review of the school curriculum, the Curriculum Development Council (“CDC”)[6] published a report (“the CDC 2001 Report”) which set out directions for curriculum development in Hong Kong (“the Curriculum Reform”).

20.  Under the Curriculum Reform, the CDC proposed that subjects under the revamped curriculum be grouped into eight Key Learning Areas (“KLA”).  The KLA are Chinese Language Education; English Language Education; Mathematics Education; Science Education; Technology Education; Personal, Social and Humanities Education; Physical Education; and Arts Education.

21.  Further, the CDC in the CDC 2001 Report proposed that there should be one curriculum framework providing an open and flexible structure and the general direction for schools to design and develop their own suitably balanced and coherent school-based curriculum, but with reference to such factors such as the learning needs, interests and abilities of the students, teachers’ readiness and also the school context.[7]  This has been generally referred to as the “One Curriculum Framework for All” principle.

22.  The curriculum framework is made up of curriculum goals, curriculum contents, curriculum organisations, learning objectives, learning and teaching approaches and expected learning outcome.[8]

23.  A “curriculum” is defined as the set of total learning experiences through which students learn for whole-person development.  The essential learning experiences include moral and civic education, intellectual development, community service, physical and aesthetic development, as well as career-related experiences.  The curriculum framework that helps schools provide the learning experiences is organised around KLA where knowledge, generic skills, values and attitudes are developed.  Through school-based curriculum development, students could acquire the essential learning experiences through the more structured learning of subjects, course, modules of KLA generally in classroom settings, and/or learning activities, life-wide learning/co-curricular activities, service learning, etc generally outside classroom settings.[9]

24.  Under this principle, the CDC has developed and recommended a central curriculum (“the Central Curriculum”) for all the schools (both mainstream and special schools) to adopt and adapt in planning and implementing their own school-based curriculum to cater for the specific needs and interests of their respective students.  The CDC also advised that, under this broad and balanced Central Curriculum for students at all levels, schools should choose subjects from each of the KLA; and within each KLA, learning could be in the form of subjects, modules, short courses, projects or a combination of those.[10]

B3.  The Central Curriculum and curriculum guides

25.  The Central Curriculum is presented in the form of conceptually cast guiding principles for the whole-school curriculum as well as KLA frameworks.  Schools in adapting it to formulate and implement their own respective school-based curriculum need to take into account the diverse and specific needs of their students and make reference to the vision and mission of their individual school sponsoring bodies to develop their school-based curriculum.  In other words, each individual school (mainstream or special) is entitled to and indeed should formulate its own school-based curriculum which would meet the specific needs, learning abilities and requirements of its students by way of adapting the common Central Curriculum.[11]

26.  The Central Curriculum is subsequently embodied in two curriculum guides: the Basic Education Curriculum Guide (“BECG”)[12] for the school level of Primary 1 to Secondary 3, and the Senior Secondary Curriculum Guide (“SSCG”)[13] for Senior Secondary level of Secondary 4 to 6.

27.  The BECG and SSCG explain the relationship between the Central Curriculum and the school-based curriculum, and encourage schools and teachers to adapt the Central Curriculum in developing their school-based curriculum.  They expressly give schools and teachers the autonomy to take into account what in their view suit their own students best in designing and developing their school-based curriculum.[14]  Thus, it is stated at page 15 of the “Introduction and Navigation Guide” of the SSCG:

“Schools and teachers are encouraged to adapt the central curriculum in developing their school-based curriculum to help their students to achieve the subject targets and overall aim of education. Measures may include readjusting the learning targets, varying the organisation of contents, adding optional studies and adopting learning, teaching and assessment strategies. A school-based curriculum is therefore the outcome of a balance between official recommendations and the autonomy of the school and teachers.” (emphasis added)

28.  Therefore, under the Government’s education policy, each school is given a lot of flexibility and autonomy to develop and implement its own school-based curriculum based on the Central Curriculum to cater for the specific needs and abilities of its own students to maximize their learning achievements.  These adaptations could be achieved by, among others, readjusting the learning targets, varying the organisation of the contents, as well as adopting learning, teaching and assessment strategies.

29.  As mentioned above, the BECG aims to, among others, provide recommendations of a Central Curriculum for schools and time allocation which all schools have to adopt at the Primary and Junior Secondary levels.  It also provides suggestions for actions in school-based curriculum planning learning and teaching, and assessment to improve the quality of education, and for school-based adaption to meet the needs of students.

30.  It is stated in the BECG that one of the feature recommendations that all schools should adopt is that the school-based curriculum should comprise the eight KLA identified in the CDC 2001 Report and the five essential learning experiences.[15]

31.  Further, in conjunction with the BECG, the CDC has published, among others:

(1) Curriculum guides for the eight KLA and the corresponding subject curriculum guides for the mainstream schools for the subjects to be taught in the KLA, including English Language.

(2) Supplementary subject guides for ID students only on Chinese Language and Mathematics (no such guides have been prepared for English Language as English Language has not been and is not a KLAsubject taught in ID Schools).[16]

32.  Similarly, the SSCG also states that the recommended Senior Secondary Curriculum to have, among others, for all the students to have the Core subjects of Chinese Language, English Language, Mathematics and Liberal Studies.[17]  Subject curriculum guides of various senior Secondary Core subjects were also published by the CDC to provide mainstream schools with guidance on how the curriculum planning of different subjects can be organised.[18]

33.  For the present purposes, following the “One Curriculum Framework for All” principle, the mainstream schools at Primary and Junior Secondary levels follow the Central Curriculum and adopt the eight KLA and teach their students the subjects under the KLA.  Insofar as the KLA subjects are concerned, the mainstream schools develop their own subject curriculums by adapting the corresponding curriculum guides with some adaptations to form the school-based curriculum that best suit their own students’ abilities.

34.  Relevantly, in relation to the teaching of English Language at the Basic Education Level (ie, Primary 1 to Secondary 3), the mainstream schools’ curriculums are adapted from the KLA Curriculum Guide 2002 and the “English Language Curriculum Guide Primary 1-6” (“the English Language Curriculum Guide”) published by the CDC.[19]

B4.  The curriculum respectively for Non-ID Schools and ID Schools

35.  As mentioned above, under the “One Curriculum Framework for All” principle, special schools are also to adapt the Central Curriculum to develop and implement their own school-based curriculum that best suits and meets their respective students’ abilities and demands.

36.  Generally speaking, Non-ID schools’ curriculums follow closely the mainstream curriculums as their students’ intellectual capabilities are the same as students in the mainstream schools.  They develop their own school-based curriculum based on the Central Curriculum by adapting the BECG and SSCG and referring to the KLA Curriculum Guides and the individual Subject Curriculum & Assessment Guides prepared by the CDC.  Non-ID schools under their curriculums therefore also teach at the relevant levels all the subjects in the eight KLA (including English Language) and the Core subjects (including English Language).  Their students would also sit for the same assessments as taken by the mainstream schools students albeit with appropriate accommodations taking into account the specific forms of physical disabilities they suffer.[20]

37.  It is however a fact that there are some students enrolled in the Non-ID Schools who also suffer from ID but with their major disability falling within the Non-ID categories, such as visual impairment, hearing impairment or other physical disability.[21]

38.  As mentioned above, ID Schools are also expected to adapt the Central Curriculum and the BECG and SSCG to develop their own school-based curriculums.  In doing so, they should also have reference to the relevant supplementary subject guides published by the CDC specifically for ID Schools to design and develop their curriculums.

39.  At the same time, historically before the CDC 2001 Report, the ID Schools had been following the “Guide to Curriculum For Mentally Handicapped Children” (“the MH Guide”) published by the CDC in 1997 to formulate and design their curriculums.  Under the MH Guide, the principle in curriculum development for ID students is that “all children whether mentally handicapped or not, have basically the same training needs and should therefore be exposed to similar learning experiences”.

40.  Under the MH Guide, the curriculum for ID students comprises six areas of learning, namely Language, Mathematics, Personal and Social Development, Perceptual Motor Aesthetics and Creativity, and Practical Skills.  These areas of learning encompass twelve basic subjects: Language, Mathematics; Computer Learning; Self-Care; General Studies; Perceptual Motor Training; Physical Education; Music, Art and Craft; Home Economics; Design and Technology; and Independent Learning Skills.

41.  Relevant to the present purposes, the subject of “Language Learning” for ID students under the MH Guide has generally been understood to be Chinese Language only (being generally the mother tongue of the ID students) but not English Language.  Thus, English Language has generally not been taught in ID Schools as a Core subject under the curriculum.  Usually, it is only taught at the basic practical level with the learning of simple vocabularies for simple daily use.[22]

42.  The ID students are generally not taught English Language as a Core subject because the ID students’ learning capacity and characteristics, in particular in light of the fact that the intellectual development of ID students lags significantly behind that of normally developing students and their usually weaker memory capability.  Most mild-ID students are slower in language development and display low competence in comprehension and expression.[23]

43.  Moreover, it is EDB’s position that the language meeting ID student’s daily functioning needs and the medium of teaching instruction that helps their intellectual development should be Chinese Language instead of English Language.[24]

44.  Hence, although it is the CDC’s position that since 2002, ID Schools should similarly develop their own school-based curriculums by adapting the Central Curriculum and the BECG and SSCG thereunder, the CDC has not published supplementary subject guide for English Language as, consistent with the MH Guide approach, it understands that English Language is generally not taught as a KLA or Core subject in ID Schools.

45.  However, it must be noted that it is the Secretary’s evidence and position in this judicial review that it is open to individual ID School to decide to teach English Language as a KLA subject under its own school-based curriculum.  If English Language is taught as a KLA subject, given the language learning ability of ID students, more lesson time should be allocated in the curriculum.  It is also the Secretary’s position that in so doing, the individual ID school is also to adopt and adapt the Central Curriculum and the BECG or SSCG (as appropriate) to develop its own English Language subject curriculum even though there is no supplementary subject guide for that as provided by the CDC.[25]

46.  Indeed, in its Holistic Review of Subjects in Special Schools on Basic Education, the CDC’s Ad Hoc Committee on Special Education Needs emphasised that ID students should be given the same opportunity to learn English Language as mainstream students, and that the adapted curriculum for them should include English Language and schools may choose whether or not to offer the subject based on their students’ abilities and needs.  It further states that, if an ID school chooses to do so:

“... it should adopt the areas of learning of English Language curriculum for ordinary schools [ie, mainstream schools] and appoint qualified English teachers to teach the subject. The Curriculum Development Institute (CDI) will follow up the adaption of lesson time and curriculum content by issuing relevant curriculum adaptation guidelines”

B5.  The SAME curriculum and the School’s English Language curriculum

47.  In light of the One Curriculum Framework for All principle and the recognition that students with SEN would have to adapt the Central Curriculum to suit their learning needs and capacities, a group of educationalists of the Centre for Advancement in Special Education of the Faculty of Education (“the Centre”) at the University of Hong Kong initiated the “Systematic Approach to Mainstream Education” Network Project on Curriculum Development for Special Schools (“the SAME Project”).  The Centre working with nine special schools developed a local curriculum framework for delivering the SAME curriculum for students with SEN in the Hong Kong context (by using the development model derived from the UK).  In essence, the curriculum developed under the SAME Project is adapted from the Central Curriculum and the various KLA subject guides published by the CDC.[26]

48.  Hence, under the SAME Project, the Centre has published respective supplement guides for each KLA subject specific to students with SEN.  These supplement guides are developed by basing on the structure and rationale of the Central Curriculum and adapting the corresponding KLA subject curriculum guides and BECG and SSCG published by the CDC.

49.  Specifically, a supplement guide on English Language Education as a KLA subject has been developed and published (“the SAME English Language Education Supplement Guide”) for the teaching of English Language as a KLA subject in ID Schools.  The SAME English Language Education Supplement Guide for the levels of Primary 1 to Secondary 3 students is developed by reference to and adapting the English Language Curriculum Guide developed under the BECG and published by the CDC.  At paragraph 1.5.1 of this Supplement Guide, it is emphasised that it should be used as a supplement to the English Language Curriculum Guide and should be read in conjunction with that Guide.

50.  The School is one of the network special schools involved in the SAME Project.  Since the 2007/08 school year, it has been teaching English Language to its pupils as a KLA subject, using the SAME English Language Education Supplement Guide as its curriculum.

B6.  NET Scheme

51.  Under the NET Scheme, public sector schools can apply to the EDB to employ native English-speaking teachers (ie, NETs) to enhance the teaching of English Language and increase students’ exposure to English.  The NET Scheme was formally introduced to Secondary schools in the 1998/99 school year and then to Primary schools in the 2002/03 school year.

52.  At the Primary level, a school with six operating classes or more is eligible to apply for the provision of a NET under the NET Scheme.  However, Primary schools with fewer than six operating classes (“Small Schools”) are not eligible to apply for the provision of a NET under the scheme.  They can instead apply for peripatetic support provided by the Advisory Teaching Team (“ATT”) of the NET Section. Advisory Teachers (“ATs”) under the ATT are also NETs.[27]  I will say more about peripatetic support later when it becomes relevant in the arguments.

53.  At the Secondary level, a school is eligible to apply for the provision of a NET under the NET Scheme. If the school has 40 or more operating classes, it is entitled to the provision of two NETs.  Those schools formerly using Chinese as the medium of instruction can opt to fill one of their additional English teachers by a NET.[28]

54.  Although how to deploy the use of a NET is a matter entirely for the school, NETs are expected to act as English Language resource persons in schools under the NET Scheme.  Teaching duties in schools are expected to be provided primarily by the local English teachers (“LETs”) but not by the NETs.  NETs’ primary role is to provide support for the English panel in the schools, which include:

(1) contributing to school-based curriculum development and professional development of fellow English teachers;

(2) developing and preparing learning and teaching materials; and

(3) organising and conducting extra-curricular activities related to English learning and teaching.[29]

55.  NETs therefore assist in the planning and developing school-based curriculum and activities and materials relating to English Language teaching.  They also co-plan with teachers for each grade level involved to be specified in the teachers’ timetables.  They are also deployed to contribute to the school’s cultural and authentic English Language environment, prepare and present school-based workshops and attend centralised and regional professional activities.

B7.  The Decision

56.  As mentioned above, by a letter dated 20 April 2011 (“the Application Letter”), the School applied to the EDB for the provision of a NET on the basis, among others, that:

(1) the School has been providing English lessons for many years and in line with the One Curriculum Framework for All principle, its curriculum is adapted from the English Language curriculum for mainstream Primary schools;

(2) the School currently employs seven English teachers all of which have met the English Language Proficiency Requirement; the purpose of its application for NET is to facilitate its teaching efforts; and

(3) the School has more than six approved operating classes.

57.  By a letter dated 26 July 2011 (ie, the Rejection Letter), the EDB rejected the application on the primary basis that under the existing policy (“the Policy”), NET Scheme in Primary schools does not cover ID Schools in view of their special curriculum, different educational needs, and not being included as schools offering English Language as part of the Basic Education curriculum framework.  However, the EDB further indicated that the ATT provides peripatetic support to schools not under the NET Scheme and is ready to help the School with similar services.

58.  As explained by the Secretary in the evidence filed in this judicial review, the main reason underlying the Policy is said to be that English Language is not, and has not been, taught as a KLA subject in the ID Schools under their special curriculum.  There would therefore either be non-teaching or low level or volume of English Language teaching in ID Schools.  As a result, it means that a NET would not serve any of the intended purposes or aims of the NET Scheme (where there is no English teaching), or that the provision of a full time NET would not be economically justified and would not be a proper or responsible use and allocation of educational resources.[30]

C.  THIS JUDICIAL REVIEW

59.  The applicant raises a number of grounds of judicial review.  As summarised by Mr Dykes (for the applicant), they are as follows:[31]

(1) The Decision is unlawful as it directly or indirectly discriminates against the applicant, contravening section 6 of the DDO (“the Discrimination under the DDO Ground”).

(2) The Decision is unconstitutional as it is inconsistent with the equal rights protected under Article 25 and 39 of the BL and Article 22 of the BOR (“the Unconstitutionality Ground).

(3) The Decision is unlawful as it amounts to a fettering of discretion of the Secretary under the Policy on allocating NET resources (“the Fettering of Discretion Ground”).

(4) The Decision is unlawful as, in making it, the Secretary failed to take into account relevant considerations and took into account irrelevant considerations (“the Relevant and Irrelevant Considerations Ground”).

60.  I will deal with each of these grounds in turn.

C1.  The Discrimination under the DDO Ground

61.  The applicant submits under this ground that the Decision is premised on the application of the Policy, which provides effectively blanket exclusion in the provision of NETs to ID Schools.  In the premises, the Policy (and hence the Decision) involves:

(1) a direct discrimination based on disability, which is prohibited under section 6(a) of the DDO; and/or

(2) an indirect discrimination, which is prohibited under section 6(b) of the DDO.

62.  I will look at the challenge based on direct discrimination first.

C1.1  Direct discrimination

63.  Section 6(a) of the DDO relates to a prohibition of direct discrimination.  This section should be read together with section 8.  They provide as follows:

“Section 6: Discrimination against persons with disability, etc.

A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Ordinance if-

(a) on the ground of that other person's disability he treats him less favourably than he treats or would treat a person without a disability;

(b) ...

...

Section 8: Comparison of cases under section 6

A comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

64.  It is now established[32] (and indeed is common ground) that to establish direct disability discrimination under section 6(a) of the DDO (read together with section 8), the complainant has to show that:

(1) on a relevant comparison between the complainant with a disability and thecomparator (that is, a person “without a disability”), he receives less favourable treatment (“the comparator question”); and

(2) such less favourable treatment is wholly or partially due to the complainant’s disability (“the causation question”).

65.  Under the comparator question, section 8 of the DDO provides that the comparison has to be made between relevantly “the same or not materially different” circumstances.

66.  Mr Dykes’ case under direct discrimination runs as follows.

67.  First, he submits that as a matter of proper or remedial construction, section 6(a) (and section 6(b) as well) permit the comparator (ie, “a person without a disability”) to be either a person who does not suffer any disability or a person who does not suffer “the” disability of the complainant.  In other words, section 6(a) prohibits not only discrimination between a disabled person and a normal person, but also inter-disability discrimination.  Purely for convenience, I will call the comparator without any disability a “without disability comparator”, and a comparator without the disability of the disabled complainant a “disabled comparator”.

68.  Second, in the present case and for the purpose of section 8 of the DDO, the relevant comparable circumstances are the studying of English Language as a KLA subject at a similar pace and manner.

69.  Third, insofar as the present case is concerned, Mr Dykes says there is direct discrimination of the applicant by reason of the Decision when compared with either a without disability comparator or a disabled comparator.

70.  Under the first scenario, the appropriate comparator is a normal mainstream student (ie, a person without a disability) studying English Language as a KLA at a similar pace and manner as the applicant.  They are at the same or not materially different circumstances because:

(1) The applicant is studying in the School English Language as a KLA subject under the SAME English Language Education Supplement Guide.  The without disability comparator is being taught English Language as a KLA subject under the English Language Curriculum Guide.

(2) The two curriculums are effectively the same or similar as they are both developed and adapted from the BECG under the One Curriculum Framework for All principle.  The applicant and the comparator therefore are being taught English Language as a KLA subject at a similar pace and manner.

71.  However, the Secretary has treated the applicant less favourably in not providing him with a NET to facilitate and enhance his learning of English Language, when the without disability comparator is so provided with.  The difference in treatment is because of the applicant’s ID.  There is therefore direct discrimination.

72.  Under the second scenario, the disabled comparator is a student with a disability but not ID who studies English Language as a KLA at a similar pace and manner as the applicant (ie, a student in a Non-ID School).  Again, they are at the same or not materially different circumstances because:

(1) The applicant is studying in the School English Language as a KLA subject under the SAME English Language Education Supplement Guide.  The disabled comparator in a Non-ID School is being taught English Language as a KLA subject under the English Language Curriculum Guide.

(2) They are being taught English Language as a KLA subject at a similar pace and manner as the applicant because the two curriculums are effectively the same as or similar as they are both developed and adapted from the BECG under the One Curriculum Framework for All principle

73.  However, it is common ground that Non-ID Schools are provided with a NET under the NET Scheme.  The applicant is therefore being treated less favourably by the Secretary in not being provided with a NET.  The difference in treatment is clearly based on the applicant’s ID.  There is thus also direct inter-disability discrimination.

74.  Ms Wong opposes this ground only in relation to the comparator question.  She submits that, under this question: (a) no relevant comparison can be made as the applicant and the suitable comparator are not in the same or not materially different circumstances; and (b) in any event, even if a relevant comparison can be made, the applicant receives no less favourable treatment as the School is offered peripatetic support.  She also submits that, on a proper construction of section 6(a) of the DDO, the suitable comparator can only be a without disability comparator but not a disabled comparator.

75.  Ms Wong however accepts that, if the applicant can show that a relevant comparison can be made and that there is less favourable treatment under that comparison, the difference in treatment is made because of the applicant’s disability.  In other words, the Secretary would not oppose this ground on the causation question.

76.  In the premises, under this ground of challenge, the court is only concerned with the comparator question, and for that, there are three issues that call for determination in light of the contentions raised:

(1) Whether, on a proper construction, section 6(a) of the DDO covers also inter-disability discrimination.

(2) Whether the applicant is in relevantly the same or not materially different circumstances as that of the comparator for the purpose of making a comparison under section 6(a) of the DDO.

(3) Whether the Secretary has treated the applicant less favourably in not approving the provision of a NET but only offering the School the services of peripatetic support.

77.  I will now turn to these issues.

C1.1.1  Whether section 6(a) of the DDO covers also inter-disability discrimination

78.  This is a question of construction.

79.  The wording of section 6(a) stipulates that a comparison is to be made between the treatment given to the complainant of disability discrimination with the treatment given to another person “without a disability”.  As submitted by Ms Wong, the courts in Hong Kong have construed that the phrase “without a disability” plainly means “without any disability”,[33] ie, a without disability comparator.  Thus, on a plain and literal reading of section 6(a), the suitable comparator in the present case has to be a student without any disability.

80.  Mr Dykes however argues that the court should adopt a construction to interpret the words “without a disability” to mean “without the disability” to reflect what he says to be the obvious intention of the DDO.  In other words, section 6(a) should, on proper construction, permits what leading counsel describes as “inter-disability” comparison where, other than a person without any disability, the comparator may also be one who is suffering a disability different from the complainant’s.

81.  Mr Dykes submits that this construction can be achieved in two ways.

82.  First, he submits that section 7(2) of the Interpretation and General Clauses Ordinance (Cap 1) (“the IGCO”) provides that words and expressions in singular to be taken as including words and expressions in plural (and vice versa).[34]  Thus, applying section 7(2) of the IGCO, the words “a disability” should be read to include “any disabilities”, and this would enable an inter-disability comparison.

83.  With respect, I cannot see how section 7(2) of the IGCO would assist Mr Dykes’ contended “inter-disability” construction.  Leading counsel’s above submissions have not taken into account the word “without” preceding the words “a disability” in section 6(a) of the DDO.  Once the word “without” is read together with “a disability” or, (as contended) “any disabilities”, it would still clearly mean that the comparator has to be someone without any forms of disabilities.  It therefore would not permit a comparator to be someone with a form of a disability other than that of the complainant.

84.  Second, Mr Dykes submits that the court should adopt a rectifying or remedial construction of section 6(a) to arrive at the “inter-disability meaning, as only that would reflect what he says to be the clear intention of the legislature in enacting the DDO.  It is Mr Dykes’ contention that the legislature intended the DDO to provide a comprehensive prohibition against disability discrimination, and it would be surprising if not absurd to suggest that section 6(a) is intended not to cover inter-disability discrimination.  Mr Dykes further says this is underlined by the legislative history that the drafting of the DDO was based on the Australian Disability Discrimination Act 1992 of the Commonwealth of Australia (“DDA”), which itself prohibits inter-disability discrimination.

85.  Mr Dykes’ submissions on remedial construction are echoed by Mr McCoy for the EOC.  In particular, it is EOC’s position that the DDO must be intended to provide for and cover prohibition of inter-disabilities discrimination, as has been expressively set out at paragraphs 4.3.1 and 6.1.3.2 of the EOC’s published Code of Practice on Education (“the Code on Education”):[35]

“4.3.1 Direct disability discrimination means treating a person with a disability less favourably than another person without that disability, in comparable circumstances, on the ground of the disability.

...

6.1.3.2 which refuses or fails to accept a person’s application for admission as a student due to his or her disability where that person, if admitted, would require services or facilities that are not required by students without the disability, and the provision of which would impose unjustifiable hardship (see paragraph 12.3 below) on the educational establishment; ...” (emphasis added)

86.  In this respect, Mr Dykes and Mr McCoy have both further drawn the court’s attention to the fact that:

(1) the Code on Education is subject to legislative approval and it has legal effect inasmuch as its provisions must be taken into account in proceedings under DDO where provisions are relevant to an issue: section 65(4) - (6), and (13) of the DDO;

(2) the Code on Education has in fact been tabled before the LegCo notwithstanding the fact the apparent contradiction between the express words of section 6(a) and the EOC’s understanding of the intention of that provision to permit inter-disability comparison was brought to the LegCo’s attention.[36]

87.  Again, with respect, I am not persuaded by these submissions.

88.  It is well established that for the court to adopt a remedial or rectifying construction, the court has to be “abundantly sure” of three matters, namely:[37]

(1) the intended purpose of the statute or provision in question;

(2) that by inadvertence the draftsmen and the Legislature failed to give effect to that purpose in the provision in question; and

(3) the substance of the provision the Legislature would have made, although not necessarily the precise words the Legislature would have used, had the error in the Bill been noticed.

89.  With that in mind, I accept Ms Wong’s submissions that it is far from being abundantly sure that the three requirements are satisfied:

(1) There is no evidence that the legislature intended to outlaw inter-disability discrimination but had inadvertently failed to give effect to such purpose.

(2) This is a case in which it is instead clear that the legislature intended the word “a” in section 6(a) to mean “any”:

(a) The DDA was expressly considered in the drafting of the DDO.  Section 5 of the DDA provides that a person discriminates against a person on the ground of a disability if he treats him less favourably than “a person without thedisability”, ie, the specific disability of the first-named person, in circumstances that are not materially different, and the comparator may or may not have a (different) disability of his own.  See paragraph 2 of Explanatory Memorandum of the Disability Discrimination Bill 1995.

(b) In the circumstances, one must assume that the change of drafting (from “without the disability” in the DDA to “without a disability” in the DDO) was deliberate thereby indicating a different legislative intent.

(3) The clear legislative intention not to cover inter-disability discrimination in the DDO is reinforced by the following related provisions of the DDO:

(a) It is strengthened by section 8 which qualifies section 6 in requiring that “A comparison of the cases of persons with or without a disability shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other” – which means a comparison for section 6 is between a person with a disability (ie, the complainant of discriminator) and a person without a disability (ie, the comparator).  The latter must be one without a (ie, any) disability; a comparator with a different disability is simply not someone “without a disability”.

(b) It is also fortified by juxtaposing section 6(a) against section 6(c) which provides,[38] in the context of discrimination on the ground of disability of a complainant’s associate, that the relevant comparison is to be with a person “without such a disability”, thereby referring to the specific disability of the associate.  The different use of wording in different paragraphs within the same section suggests that different scopes were intended as one would “naturally expect the two different phrases to have different meanings”.  See: Trustee Solutions Ltd v Dubery [2007] ICR 412 at paragraph 34, per Lewison J.

(4) The clarity of the legislative intention to exclude inter-disability discrimination is not detracted from by the facts that the Code on Education[39] (containing paragraph 6.1.3.2 – using the article “the”) was tabled before LegCo on 6 June 2001 and 4 July 2001 before coming into force and that the issue of inter-disability discrimination was corresponded upon between the Assistant Legal Advisor of the Legislative Council Secretariat and the Director (Disability) of the EOC.[40]

(a) The scope of section 6(a) is a question of law solely for the court, and what the EOC considers is or should be the law is simply irrelevant and inadmissible.  As said by Lam J (as the learned VP then was) in his decision given on 10 January 2012 at the leave stage, at paragraph 6:

“6. ... Neither do I see any merit in the contention that the Code of Education issued by the Equal Opportunities Commission could be prayed in aid in the construction of Section 6(a). Section 6(a) was enacted many years before the drafting and endorsement of the Code by the Legislative Council. The views of the Director (Disability) of the Equal Opportunities Commission in the correspondence with the Legislative Council Secretariat in June 2001 are also inadmissible for the purpose of construing Section 6(a).”

(b) Indeed, the fact that the EOC has deemed it necessary to propose legislative amendment to section 6(a) (which opinion was expressed in the same correspondence) is evidence that the EOC considers that that section 6(a), as it now stands, does not and cannot be plausibly construed to include inter-disability discrimination.

(5) It is also difficult to see how the deliberate choice of words “without a disability” (and their Chinese equivalent “非殘疾人士”) rather than “without the disability”, with the latter phrase being used in the DDA on which the drafting of the DDO was expressly and extensively based, can be said to be the result of a mistake or inadvertence of the draftsman or that this deliberate change of words was not the result of a deliberate legislative intention for such a change.

(6) Moreover, the English and Chinese texts of section 6(a) are consistent, as held by Lam J in his decision of 10 January 2012 at paragraph 6 and as accepted in the applicant’s submissions paragraph 51.  They are equally plain in conveying a reference to a comparator without any disability.

(7) The DDO at that time represented an after-consultation compromised introduction of the law on disability discrimination instead of a wholesale incorporation of the discrimination law as practised on other countries.  Hence, for example, there have not been any requirements in the DDO say to require proportionate employment of disabled persons or accommodation.[41]  This shows that the DDO was not intended to incorporate in a wholesale manner what have been covered under say the DDA.

90.  For these reasons, it is not open to the court to adopt the rectifying construction to interpret section 6(a) of the DDO as submitted by the applicant and the EOC.

91.  I therefore conclude that, on a proper construction, section 6(a) (and similarly also section 6(b)) of the DDO does not permit an inter-disability comparison, and the words “a person without a disability” means a person without any disability.

92.  In other words, in the present case, it is not permissible for the applicant to seek to establish discrimination by comparing with another person who is also suffering from a disability other than ID.

C1.1.2  What are the relevant circumstances for a relevant comparison in the present case

93.  Ms Wong’s submissions under this question can be summarised as follows.

94.  The requirement to compare a complainant of discrimination with the comparator in the relevantly “same or not materially different circumstances” is to reflect the well accepted underlying general principle of “treating like cases alike”.[42]  There is no discrimination when cases are relevantly different, as material differences can and do often exist between person under disabilities and those who are not, to achieve equality between them often means that different treatments are sometimes justified.

95.  Further, Ms Wong submits authorities show that in the context of making a comparison under sections 6(a) and 8 of the DDO, the relevant circumstances should include the supposedly less favourable treatment complained of.[43]  Thus:

(1) In Purvis, the appropriator comparator was another student without disability but in the actual circumstances of violent behaviour attending the treatment complained of (which was expulsion from school).

(2) In M, the appropriator comparator was another Administrative Officer without disability but in the actual circumstances of poor work performance attending the treatment complained of (which was being invited to resign).

(3) In Ma Bik Yung v Ko Chuen [2000] 1 HKLRD 514 at paragraph 34, per Mayo VP and (2006) 9 HKCFAR 888 at paragraph 23(2), per Li CJ, the appropriator comparator was held to be an able-bodied person who had a heavy item of baggage as the defendant taxi-driver refused to load the plaintiff passenger’s wheelchair into the boot.

96.  It follows that in ascertaining whether there is any, and (if so) who is the, comparator in the same, or not materially different, relevant circumstances, regard must be had to the supposedly less favourable treatment and the circumstances attending such treatment.

97.  In the present case:

(1) The supposedly less favourable treatment complained of is the exclusion of ID schools from the NET Scheme.

(2) Under that NET Scheme, NETs are provided to Primary schools:

(a) following the mainstream school’s English Language curriculum, which entails a substantial portion of curriculum time on the teaching and learning of English in the context of its nature, breadth, depth and intensity; and

(b) with a sufficient number of approved operating classes, which requirement is to ensure a sufficient volume of English teaching to make full use of a NET.

(3) Indeed, the NET Scheme should not be viewed in isolation but as an integral service of the administration of the mainstream English Language curriculum.

(4) ID schools are excluded from the NET Scheme in the circumstances that they do not pursue the mainstream English Language curriculum or any English Language curriculum.

98.  Insofar as the mainstream English Language curriculum is concerned, for the present purposes, Ms Wong accepts that one could equate that with the English Language Curriculum Guide.[44]

99.  In the premises, Ms Wong submits that the appropriate comparator in the present case should be a Primary school student without any disability attending a mainstream school who is pursuing an adapted English Language curriculum of the nature and complexity and at the level and of the volume administered in an ID school or not at all. This is so because the relevant circumstances are that the applicant and the comparator should be studying the same or materially not different English Language curriculum.

100.  Ms Wong then contends that the English Language Curriculum Guide is materially different from the SAME English Language Education Supplement Guide in terms of its nature, breadth, depth and intensity.  The applicant’s circumstances are therefore also materially different from that of the comparator’s.  In other words, the applicant’s relevant situation is simply not analogous to the situation of the comparator who is treated differently.[45] In the premises, there can be no or no true section 6(a) comparison between the treatment given to the applicant and that given to the comparator under the NET Scheme.

101.  In order to show that the two “curriculums” are materially different, in the course of the hearing, Ms Wong and her learned junior and legal team have efficiently produced a table comparing them in respect of the “Learning Targets and Language Skills for Key Stage (Primary 1 - 3).

102.  With the aid of the table, Ms Wong has also taken me to some parts of the respective guides at the hearing to demonstrate and emphasise the fact that the SAME English Language Education Supplement Guide covers at most only one-third of the contents as that of the English Language Curriculum Guide, and the former’s stated learning objectives are much less than that as intended by the latter.  Leading counsel has further reminded the court that while the Primary students in the mainstream schools pursuing the English Language Guide have to sit for the Territory-wide System Assessment (“TSA”) to assess their achievements under the curriculum, the ID students, including the applicant, are not required to do so.

103.  Ms Wong therefore concludes that, in the absence of the comparison mandated by sections 6(a) and 8, it is not possible to say whether the applicant has been treated less favourably than the comparator for the purpose of section 6(a), so that a case of direct discrimination cannot and has not been made out.[46]

104.  As mentioned above, Mr Dykes for the applicant on the other hand submits that the appropriate comparator would be a person without a disability being taught English Language as a formal KLA subject but at a similar pace and manner as the applicant, studying at a mainstream school.  Under this formulation, Mr Dykes’ fundamental submissions is that the applicant’s studying of English Language under the SAME English Language Education Supplement Guide should, for the purpose of the relevant comparison, be treated and regarded as at a similar pace and manner as the mainstream student studying at the mainstream school.  In other words, it is Mr Dykes’ contention that the SAME English Language Education Supplement Guide is not materially different from the English Language Curriculum Guide for that purpose.

105.  In support of the submissions, Mr Dykes and his learned junior together with their legal team have with similar efficiency also produced an 18-page table in the course of the hearing seeking to demonstrate that the two curriculums as a matter of principle are not materially different.

106.  There is no dispute that the question of what is the relevant comparable circumstances should be answered in the proper context of the particular disability discrimination complaint made in this application.  As observed by Lord Nicholls in Shamoon v Chief Constable of the RUC [2003] ICR 337 (HL) at paragraph 12, the formulation of the comparators in a discrimination case has to be considered in the context of the particular issue under challenge before the court.

107.  In the present case, the relevant context for examining the comparator question is in my view the overall regime and policy in relation to the development of curriculum in English Language education as a KLA subject and the nature and use of NETs. When the parties’ above contentions on the respective comparators are considered under this context, the crucial and real question that the court needs to look at is whether the SAME English Language Education Supplement Guide can be regarded in nature and specie as materially not different from the English Language Curriculum Guide.

108.  For that, I find the following (which is borne out by the evidence I have set out in section B above) to be highly relevant in prescribing the context:

(1) As a matter of principle, the EDB encourages ID students to learn English Language as a KLA subject.  As it regards, also as a matter of principle, that ID students should have the same learning opportunity as mainstream students in learning English.  This is buttressed by the Secretary’s evidence and position that ID Schools are not prohibited or discouraged from teaching ID students English Language as a KLA subject.

(2) Under the One Curriculum Framework for All principle, the EDB requires ID Schools that teach English Language as a KLA subject to adapt the English Language Curriculum Guide to formulate their own respective school-based English Language curriculums to suit the learning needs and capacity of their students.  Similarly, as accepted by Ms Wong at the hearing, mainstream schools would also have to adapt the English Language Curriculum Guide to formulate their own respective English Language school-based curriculums to suit the abilities of their respective students.

(3) NETs are provided by the EDB to schools predominantly as resource teachers.  Their designed primary duty is not to teach in classes.  They are to assist the schools to formulate and develop their school-based curriculums and to help LETs to further develop their English teaching methods.  They would also provide an authentic English speaking environment to facilitate the students’ learning of the language.  Moreover, the way as to how to deploy the use of a NET is a matter for the school allocated with a NET.

109.  When considered in the above context, I am of the view that the SAME English Language Education Supplement Guide should be regarded in nature as not materially different from the English Language Curriculum Guide.  My reasons are these:

(1) It is the Secretary’s own position that “curriculum” is defined as the set of total learning experiences through which students learn for whole-person development, and these learning experiences are organised by the relevant KLA subject curriculums where knowledge, generic skills, values and attitudes are developed (see paragraph 23 above).

(2) Further, under the One Curriculum Framework for All principle, all the schools, including ID Schools, teaching English Language as a KLA subject should formulate their own respective school-based curriculums by adapting from the English Language Curriculum Guide.  The principle reason underlying this principle is, as explained above, the recognition that different students would have different levels of learning capabilities and thus needs.  It is therefore proper and correct to have school-based curriculums to suit the students’ needs to achieve the optimum result of learning and teaching.  However, all these curriculums should pursue and seek to achieve the objective to provide the same essential learning experiences to students.

(3) In the premises, from an education perspective and the development of curriculums’ point of view, objectively it must have been expected that the adapted curriculums (in order to suit the students needs) would well have appreciable differences in terms of their contents, scope of coverage and targets when compared with the Central Curriculum, and these would all be permitted (and indeed encouraged) insofar as these curriculums do provide the same essential learning experiences as incorporated under the Central Curriculum and the different KLA subject curriculum guides set out by the CDC.

(4) Moreover, NET teachers are intended under the scheme to act primarily as a resource teacher but not to teach.  Thus, in this context, for the purpose of comparison, it is inappropriate to simply compare an adapted curriculum with the English Language Curriculum Guide on an item to item basis as long as the adapted one is in substance not practically devoid of most or all of the contents of the English Language Curriculum Guide.  This is so as the NETs as source teachers are there primarily to help designing and developing the school-based curriculum and the teaching method and schemes therefrom.  The involvement in these tasks cannot be measured simply by looking at the teaching hours the NET teacher may have to be involved under an adapted curriculum.  In this respect, it must also be noted that there is no dispute that ID students’ learning of English Language can also in principle and in practice benefit from having the professional service of a NET.[47]

(5) Understood as such, for the purpose of making a comparison under this context, an adapted curriculum should and could only be regarded as materially different in nature and specie from the English Language Curriculum Guide if it either does not seek to provide the same essential learning experiences as identified above, or that it is practically devoid of the contents and scope of the English Language Curriculum Guide.

(6) Applying this, and looking at the comparisons put forward by both the applicant and the Secretary, there is no suggestion that the SAME English Language Education Curriculum does not or does not seek to provide those essential learning experiences.  Moreover, although admittedly the SAME English Language Education Curriculum contains an appreciably smaller contents and scope than that of the English Language Curriculum Guide, it certainly cannot be said to be in substance practically devoid of the contents and scope of the English Language Curriculum Guide.[48]  In other words, when looked at against the above context, they are of the same nature and specie.  It is still a comparison between an apple and apple, although one apple may be smaller in size than the other.

(7) In the premises, I agree with Mr Dykes’ contention that, for the purpose of making a relevant comparison under sections 6(a) and 8 of the DDO, the applicant in pursuing the learning of English Language under the SAME English Language Education Supplement Guide and the comparator pursing the study under the English Language Curriculum Guide are in not materially different comparable circumstances.

110.  Ms Wong has also sought to contend that these two curriculums cannot be regarded as not materially different because (a) the context of the NET Scheme is that it was originally designed with the intensity and scope of the English Language Curriculum Guide in mind; (b) the fact that mainstream students are required to sit the TSA to assess their achievements of the learning objectives under the mainstream curriculum, where ID students are not required to do so; and (c) the CDC is still in the stage of developing and recommending the best and most appropriate English Language curriculum for ID students.[49]

111.  I do not think any of these matters assist Ms Wong.

112.  The contention that the NET Scheme was originally designed with reference to the English Language Curriculum Guide only reflects and underlines the EDB’s position that a NET is intended to be best and fully utilised by a school following the English Language Curriculum Guide.  It does not then mean that the SAME English Language Education Supplement Guide should be regarded (subject to the above qualifications at paragraph 109(5) above) in nature as materially different from the English Language Curriculum Guide for the reasons I have explained above.  The mere fact that a NET cannot be used to the fullest extent as initially envisaged does not then mean that the curriculum he is asked to assist in an ID School is in nature or specie a different curriculum from the mainstream curriculum.

113.  Similarly, the mere fact that ID students are not required to take the TSA does not affect my considerations above.  TSA is designed to assess students’ achievements under the English Language Curriculum Guide.  As I said above, it is correct that the SAME English Language Education Supplement Guide covers in terms of contents and breadth appreciably less than those in the English Language Curriculum Guide.  It is therefore understandable as to why ID students studying this curriculum are not required to sit the TSA.  However, it does not follow that these two curriculums should be treated as different in nature for the present purposes in light of the contextual considerations I have above discussed.

114.  Finally, the fact that the CDC is still in the process of developing what it may regard as the most appropriate English Language supplementary guide for ID students may underline the commendable effort on the Administration in seeking to respond to the ID Students’ SEN and provide what it believes would be the best form of education to them.  It may even be the case that the CDC would regard the then developed supplementary guide a more suitable curriculum for ID students than the SAME English Language Education Supplement Guide developed by the Centre.  However, that does not then mean that the SAME English Language Education Supplement Guide is different in nature from the English Language Curriculum Guide, in particular given that this further special curriculum supplementary guide should and would (just as the SAME English Language Education Supplement Guide) similarly be adapted from the BECG and the English Language Curriculum Guide under the “One Curriculum Framework for All” principle.[50]

115.  I therefore reject the Secretary’s submissions that the applicant is in a materially different circumstances (insofar as the learning of English Language as a KLA subject is concerned) from the comparator, and thus no meaningful comparison as required under sections 6(a) and 8 of the DDO can be made.

116.  The next issue I then have to look at is whether the applicant is given a less favourable treatment when compared with the comparator.

C1.1.3  Is there less favourable treatment

117.  Ms Wong submits that the applicant is not given a less favourable treatment even though he is not provided with a NET because the School was offered the alternative of peripatetic support service.

118.  The Secretary’s case as to why a peripatetic support is as good as the provision of a NET for the School (and generally for ID Schools) is as follows.[51]

119.  It is the Secretary’s evidence that the EDB will offer and provide (and has in fact provided) peripatetic NET support to ID Schools upon request on a case-by-case basis to support its English activities, as it is available to Small Schools.

120.  There is no formal procedure for ID Schools to apply for peripatetic support from the NET Section.  The Principal of an ID School may make a request to the NET Section and details of the services will be worked out subsequent to on-site school visits by ATs of the NET Section taking into consideration the actual needs and requirements of the requesting school.

121.  As mentioned above, Small Schools are mainstream schools having less than six operating classes.  For Small Schools, it is considered more cost-effective for the ATT to provide peripatetic support to them rather than providing them with a full-time NET because of the small number of classes, the limited extent to which NETs can carry out their duties as English Language resource persons, and the reduced level of resources and support as a result.[52]

122.  The peripatetic support for Small Schools includes assigning an AT, who is also a NET, to take care of each Small School to work out the focus of support in a specific school year.  The aim of providing peripatetic support to Small Schools is to achieve objectives similar to the ones to be fulfilled by a NET assigned to a mainstream Primary school.  The actual support is tailored to meet the needs of each individual Small School, subject to the professional advice of the relevant AT and the mutual agreement between the school concerned and the ATon the scope, nature and intensity of the support, but with the objectives to be achieved under the NET Scheme in mind.

123.  Although schools may have different levels of interest in and requests for peripatetic support after the initial contact made by the ATs, most schools have shown very positive responses and welcome the regular support of an AT, which may last up to two to three years.  Some of the Small Schools have received up to 15 visits by an AT within a school year.  In addition, the ATs make regular contact with schools to provide advisory service through telephone calls and emails.  The support offered is diverse in its nature, scope and intensity.  The designated AT would meet with the English Panel of the relevant school and discuss with the Panel the school support plans, which include organising school-based teacher development workshops, conducting classroom teaching, and organising school-based English Days and English Camps.  The support focuses vary across schools, depending on the needs of individual Small Schools, and may include support for resource development, co-teaching with the LETs in developing reading skills and strategies at a particular class level or Key Stage, and collaborating with the LETs in designing activities to cater for the learners’ diversity.

124.  Peripatetic support services that may be provided to a Small School include but are not limited to the following:

(1) guiding the English Panel of the school to develop a support plan related to the planning and implementation of the English Language curriculum in the school;

(2) having meetings with the English Panel of the school on issues related to the learning, teaching and assessment of English in the school;

(3) conducting school-based teacher development workshops;

(4) providing learning/teaching resources developed by the NET Section;

(5) assisting the school in organising English-rich activities;

(6) conducting classroom teaching so as to demonstrate effective strategies in English teaching; and

(7) organising cluster meetings amongst the schools to run English-rich activities for students, eg, English Camp.

125.  It is the Secretary’s position that, depending on the individual needs and circumstances of the particular Small School, the level of services and support that a peripatetic AT assigned (who is also a NET) can offer, and what can be achieved and provided by a peripatetic NET are in effect similar to those by a full-time NET.

126.  Similarly, on a case-by-case basis, peripatetic support will be (and has indeed been) offered and provided to ID Schools though they are not eligible to apply for the provision of a full-time NET like Small Schools.  If the circumstances require and justify it, the full range of support stated above can (and will) also be provided to ID Schools, which can benefit from whatever services a peripatetic NET can provide as the circumstances (in particular in relation to its English Language teaching or activities) of the particular ID school require, in the same way as a full-time NET can benefit a mainstream school or a peripatetic NET (the AT) can benefit a Small School.  The exact scope, nature and intensity of support to be offered to the individual ID Schools will be subject to the professional advice of the ATs concerned and the mutual agreement between the schools and the ATs based on the abilities and needs of the students.

127.  AT support provided to a Small School (or ID school) may last up to two to three years and some schools may receive up to 15 visits by an AT within a school year.  Moreover, ATs make regular contact with schools to provide advisory service through telephone calls and emails.  The designated AT would meet with the English Panel of the relevant school and discuss with the Panel the school support plans, which include organising school-based teacher development workshops, conducting classroom teaching and organising school-based English Days, English Camps etc.  The support focuses vary across schools, depending on the needs of each individual school that has been provided with peripatetic support.[53]

128.  One can therefore see from the above that the Secretary’s case on why peripatetic support instead of a NET should be provided to an ID school (such as the School) which teaches English Language as a KLA subject is premised primarily on the basis that the ID school is akin to a Small School.  This in turn, as further explained by Ms Wong in her submissions, is premised on the position at the total number of hours of English teaching that the School would have for its students is similar to that of a Small School.

129.  With respect to Ms Wong, I do not think it is an appropriate way of comparison for the present purpose.  This is so since, as I have mentioned above, it is the Secretary’s own case that a NET’s primary duty under the scheme is not to teach.  In the premises, the “benefit” that a NET can offer to a school should not be simply measured by reference to the actual time of teaching the school is required of him.  Such benefit must also be measured qualitatively instead of merely quantitatively by reference simply to the total hours of teaching a NET is required to do.[54]  

130.  Moreover, in my view, it is a matter of common sense that, given their nature, the roles of a NET in a school as mentioned at paragraphs 54 and 55 above are better served and achieved by having a full time NET than an AT who visits the school up to 15 times within a school year.

131.  One also has to remember that the underlying rationales of the NET Scheme are to, among others, increase the exposure of students to authentic English speaking environment and to enhance the English Language teaching by helping the school to develop their own school-based curriculums and teaching materials.  As further stated in the Secretary’s evidence, the objectives of implementing the NET Scheme in Primary school are to:[55]

(1) provide an authentic environment for children to learn English, for example by setting up an English Room which is filled with a variety of English Language resources for students, providing opportunities (with LETs) for them to experience the Western culture in activities such as Halloween celebrations, drama and games, which may or may not be conducted directly by the NETs; and by creating a print-rich environment where students can come into immediate contact with English print texts, eg, posters, books, labels, word charts, signs, wherever they are in the school;

(2) develop children’s interest in learning English, helping them build confidence for near-native communication, cultivating a lasting interest in and establishing the foundation for life-long learning of the language;

(3) help local teachers develop innovative teaching and learning methods, materials, curriculums and activities suited to the needs of local children; and

(4) disseminate good practices in language teaching and learning through district-based teacher development programmes such as experience-sharing seminars/workshops and networking activities.

132.  These roles and objectives will again be obviously more comprehensively and better served by a full time NET assigned to an ID School than only having a part-time AT visiting the school from time to time on a yearly basis.[56] Again, the benefit of a full time NET in assisting these fundamental matters cannot be fully and properly reflected by looking simply at the number of hours English lessons the school may have in its class timetables.

133.  As the School’s principal Ms Ho How Sim puts it at her 1^staffidavit at paragraphs 13 - 16:

“13. To take the School as an example, there are currently 10 approved primary classes and 12 approved secondary classes serving around 300 pupils. For the primary section, each class is provided with at least one 55 minute English Lesson per week whilst for more abled pupils (such as the Applicant) two additional 55 minute English lessons are provided.

14. Were a NET be deployed at the School, aside from being assigned to teach the 10 approved primary classes, his/her role as a resource person would also serve the entire School and all the pupils therein. In the circumstances, to justify the refusal of providing NET to special schools for ID students such as the School on the basis that the NET can only serve a limited extent akin to a mainstream Small School (which, in any event, are few and far between anyway) is not appropriate.

15. Lastly and by way of clarification, the suggestion that I have refused the offer for peripatetic NET support as set out at paragraph 34 of Chan’s Affirmation and paragraph 33 of the Respondent’s Skeleton as being indicative of the importance (or lack of) having a NET in the School is also misplaced. As both an educator and an administrator of the School, the two services (peripatetic NET support and the NET Scheme proper) are at polar opposites in terms of quality that it cannot be equated.

16. For one thing, it should be noted that the peripatetic NET support is only offered on an ad hoc, yearly basis and even as per paragraph 32 of Chan’s Affirmation had only involved the activities such as storytelling, singing, matching games and computer games for the other two special schools for ID students.  When one compares that with having a full time NET deployed in the School on a full-time long term basis, the reason why the School decides to opt for the latter is axiomatic.”

134.  In any event, insofar as the present case is concerned, the comparison of the School as that with a Small School is also not entirely appropriate:

(1) As said by Ms Ho How Sum, the School has 10 approved Primary classes and 12 approved Secondary classes serving 300 pupils.  This is more than the less than six operating classes of a Small School.

(2) It appears that the EDB’s justification for providing peripatetic support to Small Schools instead of a NET is that it is more “cost-effective” to do so, when the service conferred on the Small Schools by having a part time AT instead of a full time NET is perhaps similar although not the same.[57] However, in a case of direct discrimination under section 6(a) of the DDO (as we are now concerned with), there is no question of justification of a differential treatment.  Cost effectiveness simply does not come into play under this question.

135.  In the premises, I reject Ms Wong’s above submissions that there is no less favourable treatment in the present case in not providing a NET.

C1.1.4  Conclusion on direct discrimination

136.  For all the above reasons, I am satisfied that the Decision amounts to direct discrimination based on the applicant’s ID, which is prohibited under section 6(a) of the DDO.  The Decision is therefore unlawful.  The School’s NET Application should be remitted to the Secretary for reconsideration, taking into account the court’s above findings.

137.  However, I must mention that, as emphasised by Mr Dykes for the applicant and Mr McCoy for the EOC, it is never their case that the discrimination is a deliberate one on the part of the Administration or the Secretary.  They acknowledge that the Administration generally and the Secretary specifically have always been acting in good faith in formulating the Policy and implementing the NET Scheme.  They also wish to put on record that the efforts by the Secretary and EDB over the years in supporting and facilitating the provision a comprehensive education to ID students are much recognised and appreciated.

C1.2  Indirect Discrimination under section 6(b) of the DDO

138.  Indirect discrimination is relied on by the applicant as an alternative ground in case he fails in showing direct discrimination.

139.  Given that I have in the above accepted the applicant’s direct discrimination ground, it is strictly speaking unnecessary for me to deal with this indirect discrimination ground.  This is particularly so as Ms Wong’s primary contention under this ground is the same as she has advanced above under the direct discrimination ground: that there cannot be a relevant and meaningful comparison between the applicant and the comparator as similarly required under sections 6(b) and 8 of the DDO.  Thus, if the applicant were not successful under the direct discrimination ground because there cannot be a meaning relevant comparison, he must similarly fail under the indirect discrimination ground.

140.  However, in deference to the submissions made by the parties under this ground, I would deal with them as briefly as I could as follows.

141.  Section 6(b) of the DDO prohibits indirect discrimination based on disability.  It provides as follows:

“A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Ordinance if-

(a) ...

(b) he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but-

(i) which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the proportion of persons without a disability who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and

(iii) which is to that person's detriment because he cannot comply with it; or...” (emphasis added)

142.  Thus, for the applicant to succeed under section 6(b) of the DDO, he has to show that:

(1) The Decision amounts to the Secretary applying to him a “requirement or condition” which she applies equally to the without disability comparator (“the requirement or condition criterion”).

(2) The group of persons suffering ID as that of the applicant who can comply with said requirement or condition is considerably smaller than the group of persons as that of the comparator (“the section 6(b)(i) criterion”).

(3) The condition cannot be justified and the condition is detrimental to the applicant as he cannot comply with it (“the sections 6(b)(ii) and (iii) criterion”).

143.  Mr Dykes says the applicant’s case clearly shows that all the above criteria are met.

144.  For the Secretary, Ms Wong has made it clear that she could not argue that the section 6(b)(i) criterion is not satisfied if the applicant can establish the other criteria.  However, it is her contentions that the applicant must fail under this ground as he cannot show that the requirement or condition criterion and the sections 6(b)(ii) and (iii) criterion can be met.

145.  In light of these contentions, I would only look at the contested criteria.

C1.2.1  The requirement or condition criterion

146.  It is common ground that the notion of “requirement or condition” for the purpose of section 6(b) involves something over and above that which is necessarily inherent in providing the goods or services: Waters v Public Transport Corporation (1991) 173 CLR 349 at 361, per Mason CJ and Guadron J; per Brennan J at 377; Catholic Education v Clarke (2004) 138 FCR 121 at paragraphs 100 - 104.

147.  Mr Dykes’ submissions that the requirement or condition criterion is met in the present case are as follows.

148.  Under the Policy (and hence the Decision), if the applicant is to have the benefit of a NET in his study of English Language as a KLA subject:

(1) he is required to give up all the special facilities and professional supports catered for ID students which are available only in ID Schools as he needs to enrol himself in a mainstream school with an approved size of over six classes and, in doing so, (“the Requirement”); or

(2) if he also wants to have the benefit of all the specialist support facilities catered for his disability, he could only do so on the condition that he studies in an ID School which teaches English Language as a KLA Subject under the English Language Curriculum Guide (“the Condition”).

149.  The Secretary therefore applies by way of the Policy and the Decision the Requirement or the Condition on the applicant.

150.  Ms Wong however submits that the Requirement or the Condition as formulated by Mr Dykes is “extremely convoluted and serves only to confuse”.  Leading counsel says that instead the real and only relevant requirement or condition applicable under the Policy is simply that the school to which the NET Scheme is made available should teach and its students should learn English under the mainstream curriculum, ie, the English Language Curriculum Guide.  This requirement or condition cannot be regarded as the “requirement or condition” used in section 6(b) since:

(1) The NET Scheme is one by which, by intent and design, NETs are provided to Primary schools (whether mainstream or special with non-ID students)

(a) following the mainstream English  Language curriculum, which entails a substantial portion of curriculum time on the teaching and learning of English Language;

(b) with a sufficient volume of teaching (realised through the minimum class number requirement).

(2) The so called “requirement or condition” that the school receiving NET services should teach and its students should learn English under the mainstream curriculum cannot be separated from, but is necessarily inherent in, the provision of such service.

(3) It is no different from a tertiary educational institution admitting only students who have completed their Secondary study.

151.  I agree that the Requirement or the Condition is not the “requirement or condition” used in the section 6(b) sense.

152.  Under section 6(b), the “requirement or condition” has to be one which the “discriminator” applies to “that other person” (ie, the disabled person, the applicant in the present case) and also equally “to a person without a disability” (ie, the comparator).  However, the Requirement or the Condition as formulated is of a nature incapable of being applicable to the comparator.  This is so as there is no question that a normal student (ie, the without a disability comparator) is or would be required to either “give up all the special facilities and professional supports catered for ID students” or study “in an ID School which teaches English Language as a KLA Subject under the English Language Curriculum Guide”.  Thus, the formulations made by Mr Dykes do not properly fall within “the requirement or condition” as intended under section 6(b).  This to a certain extent also follows from Ms Wong’s above submissions.

C1.2.2  Conclusion on indirect discrimination

153.  Given that the requirement or condition criterion is not met, the applicant cannot establish a case of indirect discrimination.

154.  This ground should therefore fail on this basis alone.

155.  Further, in the absence of a properly formulated requirement or condition under section 6(b), it is in my view inappropriate and unnecessary for the court to further consider the questions of justification and the inability to comply under the sections 6(b)(ii) and (iii) criterion.  These questions can only be properly and realistically assessed and answered by reference to the true nature of a properly formulated requirement or condition.

156.  I will therefore dismiss this ground of judicial review.

C2.  The Unconstitutionality Ground

157.  As submitted by Mr Dykes, this is again only an alternative ground relied on by the applicant.  He does not need to resort to the arguments under this ground if he is successful under the Discrimination under the DDO Ground.

158.  Since I have concluded above that the Decision amounts to direct discrimination under section 6(a) of the DDO, it is therefore not necessary for me to consider this ground.

159.  This is particularly so as the main submissions relied on by Ms Wong in saying that the Decision is not unconstitutional are, similar to the submissions made in the Discrimination under the DDO Ground, that no relevant comparable circumstances can be made between the applicant and the proper comparator.  Thus, if I had rejected the direct discrimination ground above, I would have accepted Ms Wong’s arguments that there were sufficient relevant different circumstances between the applicant and the comparator to warrant the subject differential treatment.  In other words, we are not comparing like with like.  This would have similarly rendered this constitutional challenge unsuccessful.

160.  However, given that the parties have made submissions on this, I would for completeness sake deal with this briefly.

161.  It is the applicant’s case that the Policy infringes his right to equality as protected under Article 25 of the BL and Article 22 of the BOR (corresponding to Article 26 of the ICCPR).[58]  These Articles provide as follows:

Article 25 of the BL: “All Hong Kong residents shall be equal before the law.”

Article 22 of the BOR: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any grounds such as... other status”.

162.  The court’s approach when considering whether there is infringement to the right to equality has been explained by Li CJ in Yau Yuk Lung, supra, at paragraphs 19 - 22 as follows:

“Principles

[19] In general, the law should usually accord identical treatment to comparable situations. As Lord Nicholls observed in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.566C:

‘Like cases should be treated alike, unlike cases should not be treated alike.’

[20] However, the guarantee of equality before the law does not invariably require exact equality. Differences in legal treatment may be justified for good reason. In order for differential treatment to be justified, it must be shown that:

(1) The difference in treatment must pursue a legitimate aim. For any aim to be legitimate, a genuine need for such difference must be established.

(2) The difference in treatment must be rationally connected to the legitimate aim.

(3) The difference in treatment must be no more than is necessary to accomplish the legitimate aim.

The above test will be referred to as ‘the justification test’. In the present case, the Court has had the benefit of submissions on its appropriate formulation. There is no material difference between the justification test and the test stated in R v Man Wai Keung (No 2) [1992] 2 HKCLR 207 at p.217 which was used by the Court in So Wai Lun v HKSAR (2006) 9 HKCFAR 530 at para.20.

[21] The burden is on the Government to satisfy the court that the justification test is satisfied. Where one is concerned with differential treatment based on grounds such as race, sex or sexual orientation, the court will scrutinize with intensity whether the difference in treatment is justified. See Ghaidan v Godin-Mendoza at 568G (Lord Nicholls).

[22] In requiring differential treatment to be justified, the view has been expressed that the difference in treatment in question is an infringement of the constitutional right to equality but that the infringement may be constitutionally justified. See the Court of Appeal’s judgment in the present case at 208B-C (Ma CJHC) and in Leung v Secretary for Justice [2006] 4 HKLRD 211 at 234G-H. This approach is not appropriate. Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination and not infringing the constitutional right to equality. Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of infringement of the right which may be constitutionally justified.” (emphasis added)

163.  The above two-stage test has been further considered and explained by Ma CJ in Fok Chun Wa, supra, at paragraphs 58 - 59 as follows:

“58. While perhaps in some cases, this two-stage approach can neatly be applied, it is important that it should not be regarded as if it were a statute and treated as such. A step by step approach is useful as far as it goes but it must not give rise to complicated and long-drawn out (but ultimately unproductive) arguments as to whether this step or that step has been overcome. Such arguments will often obscure the real issues in a case. This should be borne in mind when dealing with issues of equality where the two-stage approach is useful but must not give rise to complex and unnecessary arguments. I have been guided here by the remarks of Lord Walker of Gestingthorpe in his speech in R (Carson) v Secretary of State for Works and Pensions [2006] 1 AC 173, 194B-F ([63]). For my part, I have no objection in adopting the two-stage approach set out in Yau Yuk Lung as long as one firmly bears in mind the following points:

(1) The object of the exercise (when considering issues of equality) is ultimately to ask a simple question and here, I would respectively adopt the way in which this was put by Lord Hoffmann in Carson, 186H ([31]), ‘is there enough of a relevant difference between X and Y [the comparators] to justify differential treatment?’

(2) In the majority of cases where equality issues are involved, it will be necessary for the Court to look at the materials which go to the three facets of the justification test before this crucial question is answered. It will be a rare case, I daresay, where the court will comfortably be able to answer this question without any recourse to the issue of justification at all. Seen in this way, it may matter not at all whether the court's approach is seen as a two-stage one or not.

(3) Here, I associate myself with the approach of Lord Nicholls of Birkenhead in Carson, at 179C-E ([3]):

‘3. For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 [of the European Convention on Human Rights - the equipment of art.22 of the Bill of Rights] does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in art.14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’

59. This approach, which I believe to be a principled one, recognises that in most questions involving the right to equality, there will be an overlap in the application of the two-stage test set out in Yau Yuk Lung.”

164.  Hence, the law does not treat differential treatment between two groups of person as discrimination if there is sufficient relevant difference between them to justify the differential treatment.  As observed by Ma CJ in Fok Chun Wa, supra, in considering this particular question of whether there is sufficient difference to justify differential treatment, the court usually would also have to take into account the justifications proffered by the decision maker to show that:

(1) the differential treatment seeks to achieve a legitimate aim;

(2) the differential treatment is rationally connected to that legitimate aim; and

(3) the treatment is proportionate (in the sense that it is no more than necessary) as a measure to achieve that aim.

165.  In the present case, the Secretary seeks to answer these questions of justification affirmatively as follows:

(1) The differential treatment of not providing NETs to the applicant pursues the legitimate aim of ensuring full-time NETs are made available only to schools where there exist conditions for the NETs to fully and meaningfully carry out their expected roles under the NET Scheme.

(2) The exclusion of ID Schools where the level and volume of English teaching fall short is clearly rationally connected to such legitimate aim.

(3) It is no more than is necessary to accomplish this aim.

166.  The fundamental proposition put forward by the Secretary is effectively that the differential treatment (ie, not to provide full time NETs to ID Schools even if they are teaching English Language as a KLA subject) is to achieve the legitimate aim of “saving costs”.  See also Cheung Wai Mun Rosana’s 2^nd affirmation at paragraphs 46 and 53 and paragraph 134(2) above.

167.  As pointed out by Mr Dykes, in light of the number of ID Schools in Hong Kong that would or could teach English Language as a KLA subject to their students, the estimated amount of costs that can be saved for each year is in the region of $2 million or so.[59]  The annual expenditure spent by the Government on education (for the year of 2010 - 2011) is about $60,719 million.[60]  The saving of costs amounts to about 0.003% of the total spending.

168.  However, as observed by Ribeiro PJ in Kong Yun Ming v Director of Social Welfare (2013) 16 HKCFAR 950, paragraph 49, saving costs would not in itself be a legitimate aim to justify a restriction on a constitutional right.  The purpose and effect of the cut in expenditure would have to be taken into account before it can be properly seen whether the saving of costs constitutes a legitimate societal aim and that aim is rationally connected by the challenged measure.

169.  In the present case, the Secretary has not explained in the evidence what are the purpose and effect of saving those costs in excluding ID Schools from the NET Scheme.  It is not the Secretary’s case that the saving is necessary in order to maintain the sustainability of the NET Scheme.  Indeed, given the almost infinitesimal savings as mentioned above, it cannot be readily seen what legitimate purpose and effect the savings could result to justify a restriction on the constitutional right to equality.

170.  In the premises, I further accept Mr Dykes’ submissions that the Secretary has fail to demonstrate what is the legitimate societal aim the Policy (in excluding ID Schools from the NET Scheme) could seek to achieve, or that the Policy is rationally connected to any legitimate aim.  For the same token, the Secretary has also not been able to show that there is sufficient relevant difference between the applicant and a mainstream student to justify the differential treatment.

171.  In the premises, if the court has to determine on this ground, I would hold that the Decision is inconsistent with Article 25 of the BL and Article 22 of the BOR insofar as it applies the Policy to generally exclude ID Schools under the NET scheme even if they teach English Language KLA subject and adopt a curriculum which is not materially different from the mainstream curriculum.

C3.  The Fettering of Discretion Ground

172.  This ground as set out at paragraphs 67 - 73 in the Amended Form 86 is in gist as follows:

(1) It is trite that, whilst it is legitimate for a decision maker with whom a discretion has been entrusted to adopt a policy to guide his exercise and implementation of the discretion, the decision-maker must not allow his policy to fetter his discretion.  The policy must not be applied blindly and rigidly and preclude the decision-maker from departing from it or from taking into account circumstances and merits of the particular case in question.[61]

(2) It is common ground that the Secretary has a discretion in deciding whether or not to approve the School’s application for the provision of a NET.

(3) However, the Secretary in making the Decision referred to the Policy as the only reason for rejecting the School’s application.  In the premises, she had failed to take into account the merits of the School’s NET Application, which merit considerations should include the following:

(a) rather than having a “special curriculum”, under the principle of “One Curriculum Framework for All” (which came into being after the extension of the NET Scheme to special schools in 1998), the School has been teaching English Language in its class under the SAME curriculum which is the same or similar to the mainstream English Language curriculum;

(b) as opposed to having “different educational needs”, according to “Classification Systems of Mental Handicap” as contained in the MH Guide, students with mild grade mental handicap can, by their late teens, acquire academic skills up to approximately sixth grade level; and

(c) the School does in fact offer English Language as part of its basic education curriculum framework as set out in the Application Letter.

(4) The Secretary therefore only blindly and rigidly followed the Policy in making the Decision.  The Decision is thus unlawful and should be quashed.

173.  The Secretary however says that, in making the Decision, she has taken into account the individual circumstances relevant to the School’s NET Application.  In the 2^nd affirmation of Chan Tsui Wah, she has explained at paragraphs 82 and 87 what the EDB had considered in making the Decision.  These have been helpfully summarised by Ms Wong in her skeleton at paragraphs 75 - 76 as follows:

(1) the EDB had considered:

(a) the policy intent of the NET Scheme and the expected role and function of NETs;

(b) the current policy in the provision of NETs only for non-ID special schools with a Primary section (ie, the Policy);

(c) the curriculum development of special schools for ID students in respect of English Language as a subject in the SEN curriculum;

(d) the cost effectiveness of deploying the NET in ID schools and the extent to which the main objectives of the Scheme can be realised in these schools in connection with the level and amount of English teaching in the School;

(e) the School’s justifications for the application;

(f) the available alternatives other than a full-time NET, ie, the availability of the peripatetic support services to the School and other ID schools.

(2) The School’s application was declined because:

(a) The current NET Scheme does not include ID schools in view of their special curriculum and student learning needs.

(b) English is not a formal KLA subject in the Basic Education curriculum framework for ID schools.

(c) There has not been any consensus among the ID schools as to the educational needs for ID students and the mode of offering activities for the learning of English in ID schools.  The CDC Committee on SEN has been reviewing the Basic Education curriculum framework for schools with ID students and there has not been any decision regarding the positioning of English Language as a subject in the SEN curriculum.  A SEED Project on English Language for ID schools, including the School, will be implemented in the 2011/12 school year.[62]

(d) The specified roles of a NET as prescribed under the NET Scheme for Primary schools that is part and parcel of the basket of English Language enhancement measures in Primary schools cannot be achieved in the context of the School’s teaching environment taking into consideration of its English Language curriculum, teacher qualifications and the level and amount of teaching and learning.

174.  Mr Dykes has submitted that these are effectively ex post facto justifications and the court should not lightly accept that.

175.  The court in assessing whether evidence filed by the decision maker in explaining a decision under a judicial review challenge is a clarification of the original reasons for the decision (which is permissible) or amounts to ex post facto justifications (which is generally not permissible) would take into account the following:[63]

(1) Whether the “later” reasons are consistent with the original reasons.

(2) Whether it is clear that the “later” explanations are indeed the original reasons of the decision maker.

(3) Whether there is a real risk that the “later” reasons have been composed subsequently in order to support the decision maker’s decision or a retrospective justification of the original decision. This consideration is an aspect of (2) above.

(4) The circumstances in which the later reasons were put forward. 

(5) The experience of the persons involved.  It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members.

176.  Bearing these considerations in mind, I accept what have been described by Ms Chan are not ex post facto justifications but only clarifications of the original reasons for the Decision.  This is so because:

(1) The evidence that the EDB did look into the circumstances and merits of the particular case of the School, as explained by Ms Chan at paragraphs 82 - 87 of her 2^nd affirmation is partly corroborated by the contemporaneous internal emails and extracts of meeting notes as exhibited by Ms Chan as well as by the applicant.

(2) Further, properly understood, what Ms Chan has described in her 2^nd affirmation are in essence (a) the underlying rationale and considerations which have led to the formulation of the Policy; and (b) the view that the English Language curriculum followed by the School (ie, the SAME English Language Education Supplement Guide) is in substance different from the mainstream English Language curriculum (ie, the English Language Curriculum Guide) given the total number of hours of teaching of English Language and the fact that the ID students are not required to sit the public examinations that the mainstream students will have to do.

(3) These are objectively consistent with the reference to the Policy as the reason for the Decision as stated in the letter communicated to the School as:

(a) These are indeed the same matters that initially underlined the formulation of the Policy.

(b) There is nothing inherently incredible that in considering the School’s NET Application, the EDB would revisit these considerations both at the general policy level and in relation to the School.

(c) It does not contradict or alter any of the reasons set out in the letters from the EDB respectively dated 26 July 2011[64] and 14 October 2011.[65]

177.  In the premises, I am satisfied that the Secretary in making the Decision had considered the individual circumstances and merits of the School’s NET Application and came to the view that there was nothing in the application pertinent to the School that justified a departure from the Policy. In other words, the Secretary rejected the application not because she had simply blindly and rigidly applied the Policy.

178.  This ground of challenge should fail.[66]

C4.    The Relevant and Irrelevant Considerations Ground

179.  Under this ground, it is contended by the applicant that:[67]

(1) the Secretary failed to take into account the following relevant considerations:

(a) the Policy as stated may be in breach of section 6 of the DDO for the reasons as set out hereinabove;

(b) the obligations of the Hong Kong Government under the international conventions as well as the BL to ensure equality of treatments for disabled persons;[68]

(c) the Permanent Secretary for Education’s duties under the Code on Education especially paragraphs 3.4, 14.1 and 22 therein, effectively provide that the Government has the obligations to ensure that the students of the School should have access to the same teachers as students without disabilities and that the Government should allocate reasonable resources to support equal opportunities for the students of the School; and

(d) the individual merits of the School’s application mentioned above;

(2) the Secretary took into account the following irrelevant considerations:

(a) the practice of other SEN Schools for ID students; and

(b) that SEN Schools for ID students did not offer English Language as part of their Basic Education curriculum framework.

180.  These complaints are in my view without merits.

181.  In relation to the complaints regarding failure to take into account relevant considerations:

(1) Insofar the factors stated as paragraph 179(1)(a) - (c) above are concerned, they are all in effect premised on the proposition that the Policy is discriminatory under section 6 of the DDO or under the BOR and BL.  In other words, it is said that the Secretary should take into consideration the fact that the Policy is discriminatory and thus unlawful.  However, the Secretary regarded the Policy not to be discriminatory for the reasons advanced above (under the Discrimination under the DDO Ground and the Unconstitutionality Ground).  In the premises, there is no question that the Secretary had failed to take these into consideration. Although the court has now concluded in the above that the Decision amounts to discrimination, it does not then mean that at the time of the Decision, the Secretary had failed to take into account these matters as relevant considerations.

(2) In relation to the factor at paragraph 179(1)(d), as explained above, the Secretary did take into account the individual merits of the School’s application.

(3) Insofar as the considerations set out at paragraph 179(2) above are concerned, in my view, they go to an assessment of the continuing validity of the policy reasons for excluding ID Schools from the NET Scheme.  They cannot be said to be irrelevant factors.  In any event, it certainly cannot be said that it is Wednesbury unreasonable for the Secretary to regard them as relevant factors.[69]

182.  I therefore refuse this ground of judicial review.

D.  OTHER OBSERVATION

183.  Finally, I need to mention certain undisputed facts relating to the Red Cross Margaret Trench School (“MTS”) which have been relied on by the applicant in this application.  The facts are these.[70]

184.  MTS is a Non-ID school.  However, most of its students in fact also suffer from some form of ID.  As at 2013, it had six operating classes at its Primary Section and five operatingclasses at its Secondary Section.  Further, out of the 103 students taught at MTS, 98 of them also suffer from ID (ranging from mild to severe grade) and, but for their major primary physical disabilities, they would have been referred to an ID school.

185.  At the same time, MTS was one of the nine special schools participating in the SAME Project.  Since 2006/07 school year, MTS has been using the SAME English Language Education Supplement Guide to teach its students (including those with ID) English Language as a KLA subject.  Since 2001, MTS has been continuously applying and receiving full time Secondary NET support from the EDB.  Since 2008/09 school year, upon its application to the EDB, MTS has also been receiving full time Primary NET support under the NET Scheme.

186.  The applicant relies on the above facts in support of his case on inter-disability discrimination, in that there has been differential treatment to him on a comparison with those physical disability cum ID students in MTS who, despite being in an ineligible school (under the Policy), still have access to teaching by the NET.[71]

187.  Ms Wong for the Secretary responded to these facts by submitting that the MTS case represents obviously a mistake where there has been a misapplication of the Policy.  This is so, says Ms Wong, as the MTS clearly does not fall within the Policy as it does not use the English Language Curriculum Guide to teach its students.

188.  Since I have concluded above that section 6 of the DDO is not intended to cover inter-disability comparison, it is indeed unnecessary for me to determine whether that fact that MTS has been successful in its NET application is a result of a mistake.  However, if I am required to look into this, I would be inclined to conclude that it has not been established to my satisfaction that it is a mistake.

189.  This is so as, firstly notwithstanding the voluminous evidence filed by the Secretary, it has not been deposed to in any of the affirmations or affidavits that this is a mistake and as to how the mistake came about.  Thus, as a matter of evidence, there is nothing in support of the submission of a mistake.  The suggestion that this is a mistake is only raised by way of submission in Ms Wong’s skeleton.  Further, the lack of any affirmative evidence to say this is a mistake must also be viewed against the position that the applicant in support of his application has in August and November 2013 already relied on the fact that MTS (albeit also using the SAME English Language Education Supplement Guide) has been provided with a full-time NET.[72] This makes it even more difficult to understand as to why, if this is indeed a mistake, the Secretary has not filed any evidence to point it out.

190.  Second, Ms Wong emphasises in her submission that, notwithstanding the lack of any affirmation evidence to support it, the mistake is an obvious one since it is clearly inconsistent with the Policy.  However, this must be considered against the Secretary’s own position that (as discussed above) there is still residual discretion within the Policy for the Secretary to consider the individual circumstance of each of such applications by a special school.  When so considered, I am unable to agree that this fact must be so unequivocally a result of a mistake simply because on the face of it, it is inconsistent with the Policy.

191.  But as I said above, I do not need to come to a firm conclusion on this for the present purposes.

E.  CONCLUSION

192.  For the above reasons, I allow the judicial review on the ground that the Decision is unlawful as it amounts to a direct discrimination prohibited under section 6(a) of the DDO, or alternatively, the Decision is unconstitutional as it is inconsistent with the right to equality as protected under Article 25 of the BL and Article 22 of the BOR.

193.  I will therefore quash the Decision and remit it back to the Secretary for reconsideration in light of the court’s finding in this judgment.

194.  Although the applicant is successful in this application, I must emphasise again that it is not the applicant’s position that the Secretary had intended to act discriminatorily in formulating the Policy and making the Decision.  The applicant and the EOC have in fact expressed through counsel their appreciation of all the works that the EDB and the Secretary have carried out to facilitate the provision of a comprehensive education to ID students.

195.  Lastly, I must thank counsel and their legal teams for the invaluable assistance they have rendered to this court.

196.  There is no reason why costs should not follow the event.  I therefore make an order nisi that costs of this application be to the applicant to be taxed if not agreed with certificate for two counsel.  The applicant’s own costs should be taxed in accordance with legal aid regulations.