LAM YUET MEI v. EDUCATION AND MANPOWER BUREAU

HCAL 36/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 36 OF 2004

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DECISION

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The application to judicial review

1. The applicant is the mother of a student in Kin Tak Public School (建德公立學校) ("the School").

2. On 9 March 2004, the applicant applied for leave to judicial review two decisions said to have been made by the Education and Manpower Bureau ("EMB") in 2002 and December 2003. For the present purpose, only the decision made in 2002 ("the 1st Decision") is relevant. The Form 86A, which is in Chinese, describes the 1st Decision as "教育統籌局於2002年终止建德公立學校招收小一學生的決定". Translated into English, it refers to a decision made by the EMB terminating or not allowing the recruitment of primary one students by the school.

3. In relation to the 1st Decision, the relief sought in Form 86A is "恢復建德公立學校招收小一學生權利". Translated into English, it asks for a restoration of the right on the part of the School to recruit primary one students.

4. In her affirmation in support of the application which is also in Chinese, the applicant states in paragraph 3 that "教育統籌局 ... 於2002年, 在没有諮詢和通知下, 無故终止建德公立學校招收小一新生 的權利". Consistent with the Form 86A, the applicant is referring to a decision made in 2002 terminating the School's right to recruit primary one students. Exhibited to the affirmation are several letters written by the School between September and December 2002 to the then Education Department requesting to restore the School to the list of schools ("the POA School List") for the Primary One Admission ("POA") System and to allow the School to recruit primary one students for the school year of 2003/04.

5. The applicant's leave application was withheld pending the determination of the applicant's legal aid application, which was eventually granted. On 4 May 2004, leave to judicial review both decisions was granted to the applicant upon a consideration of the papers only.

The EMB's present application

6. On 14 May 2004, the EMB issued the present summons. Paragraph 1 of the summons asks for an order setting aside or striking out the leave granted ex parte "insofar as it relates to the applicant's challenge to the decision of the Education and Manpower Bureau made in 2002 of not granting aid to the operation of Primary One classes by Kin Tak Public School and the relief of allowing Kin Tak Public School to restore its right of recruitment of primary one students".

7. The grounds on which the EMB made the application, as appeared by its summons, are threefold:

(1) the application for leave was not made promptly and not within three months from the date when the grounds for the application first arose and there is no good reason for extending the period within which the application shall be made;

(2) the issue has become academic; and

(3) re-opening of the 2002 Decision and the granting of the relief sought is likely to cause prejudice or is likely to be detrimental to good administration.

The applicable legal principles

8. There is no disagreement between counsel as to the applicable legal principles. They are summarized below.

9. Generally speaking, the court has jurisdiction under Order 32 rule 6 of Rules of the High Court and also under its inherent jurisdiction to set aside leave granted ex parte. The power is however to be used sparingly and only in plain and obvious cases: Hong Kong Civil Procedure 2004 volume 1 para. 53-14/44 and Fordham, Judicial Review Handbook (3rd edition) para. 21.7.2 at pp. 360-1.

10. Order 53 rule 4(1) of Rules of the High Court provides that an application for leave to judicial review should be made promptly and in any event within three months from the date when the grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. Section 21K(6) of High Court Ordinance, cap.4 states that where the court considers there has been undue delay in applying for judicial review, it may refuse to grant leave or the relief sought if it considers that the granting of the relief would be, inter alia, detrimental to good administration.

11. It follows that where there has been delay in applying for judicial review, the court may either extend the time or refuse leave, depending on whether there is good reason for extending the time and whether there would be substantial prejudice or hardship or detriment to good administration.

12. The authorities recognize that the court may set aside the leave to judicial review on the ground of delay: R v Commissioner for Local Administration ex p. Field [2002] COD 58, R v London Borough of Redbridge ex p. G [1991] COD 398 and Fordham para.21.7.3 at p.362.

The issue

13. In the present case, on the applicant's own case, the 1st Decision was made in 2002. The application to judicial review being made in 2004 is prima facie out of time. The applicant does not in fact dispute this. The crux of the contention between the parties on the EMB's summons is whether good reason exists for extending the time for applying for judicial review.

14. In this regard, I agree it would be prudent for the applicant to set out in the Form 86A her reasons for the delay and/or the reasons for extending the time for the judicial review application. But given that the applicant was acting in person when she prepared the papers and commenced these proceedings, the failure to do so should not be held too strongly against her.

The basis of the EMB's application

15. In dealing with the issue of whether good reason exists for extending time and whether there would be detriment to good administration, it is important to identify with precision the decision that constitutes the 1st Decision. This is because the present summons refers to a decision of not granting aid for the operation of primary one classes. Paragraph 3 of the affirmation of Chan Wai Kwan leading the present summons further seeks to draw a distinction between a decision of not granting aid to the operation of primary one classes and that of not allowing the School to recruit primary one students. It is said that the relevant decision should be the former and not the latter. This suggests that it is not a case of the EMB misunderstanding the applicant's case. On the contrary, the EMB has on its own volition taken the view that the relevant decision made in 2002 should be one of not granting aid to the School for operating primary one classes.

16. In fact, it is clear from the Form 86A and the supporting affirmation that the applicant is referring to a decision of excluding the School from the POA School List and of not allowing the School to recruit primary one students.

17. Quite why the EMB seeks to draw the distinction and makes the present application on the basis indicated in its summons and paragraph 3 of Ms Chan's affirmation is not altogether clear to me. It is not said, for instance, that the only decision made in 2002 is that of not granting aid for the operation of primary one classes, or that no or no separate decision was made in 2002 of not allowing the School to participate in the POA and to recruit primary one students. On the contrary, Ms Chan states in paragraph 14 of her affirmation that despite the School's request to be put on the POA School List, "the decision of not allowing [the School] to take part in the POA exercise to recruit P1 students for the school year 2003/2004 was maintained".

18. To the extent that the EMB's present summons proceeds on the basis that leave had been granted to judicial review the decision of not granting aid to the School to operate primary one classes in 2002/03 or generally, the summons must be misconceived and falls to be dismissed on that basis.

Good reasons for extending time

19. That aside, I am of the view that this is an appropriate case to extend the time to apply for judicial review for the reasons set out below.

20. Properly understood, the applicant's complaint is that in 2002, a decision was taken to exclude the School from the POA School List for 2003/04, thereby not allowing the School to participate in the POA exercise and to recruit primary one students. Despite objections and repeated requests to be restored to the POA School List and to be allowed to recruit primary one students, the decision was maintained.

21. It is the applicant's case that neither the School nor the parents of the students had been given any notification of the decision to exclude the School from the POA School List and from the recruitment under the POA exercise. The School only came to know of this when the POA School List for 2003/04 was published in July 2002. Presumably, the applicant, who is a parent, would come to know of this later on and probably around September 2002 when this was reported in the newspapers.

22. Mr Kwok, who appears for the applicant, describes the decision complained of as a decision not communicated but implemented by deleting the School from the POA School List. The EMB takes exception with this contention. However, the evidence before the court does not show when the decision to exclude the School from the POA School List for 2003/04 was taken, and when and how it was communicated to the School or the parents, other than by the publication of the list.

23. All that is in Ms Chan's affirmation is the undisputed evidence that on about 28 May 2002, the supervisor of the School, Mr Sung, was told that the School would have no primary one classes in 2002/03 and also in subsequent years. While Ms Chan said that Mr Sung showed no objection, Mr Sung's evidence is he had pointed out on that very occasion that the earlier letter dated 13 May 2002 from the then Education Department only referred to no primary one classes in 2002/03, and he had specifically asked for a formal written notification and an explanation to be given if indeed a decision had been taken not to allow the School to operate primary one classes in future. Mr Sung said no such notification had been given to the School. In this application, no letter, circular, memo or document had been put forward to show when such a decision was made and that it had been communicated to the School or the parents.

24. In the course of Mr Yu SC's submissions, it was mentioned that a circular was issued in 2002 informing the School that it would not be included in the POA School List for 2003/04. I find it difficult to understand why this document was not exhibited or referred to in the affirmation leading the present application. It is by any view a relevant document. The EMB having decided not to put it in evidence, I will have to proceed without it.

25. In addition to this, it is also the applicant's case that the 1st Decision challenged is not only a decision for the school year 2003/04. Both the Form 86A and the applicant's supporting affirmation do not restrict the decision to the school year of 2003/04. In Mr Kwok's submissions, the decision though made in 2002 carries grave consequences for the fate of the School, which was only felt more recently. In his contention, the decision has a "domino" effect and culminates in the eventual cessation of the School as a whole.

26. Mr Yu SC submits emphatically that the decision made in 2002 is only in relation to the school year of 2003/04. He argues that the decision to delete the School from the POA School List for 2003/04 does not mean that the School is "forever and a day" excluded from participating in the POA exercise and from recruiting primary one students. In his submissions, it is open to the School to apply to be put back onto the POA School List, and that it might be allowed to recruit primary one students if there were justifying circumstances. It is also said that the School could have applied to operate primary one class on a non-subsidized basis. As to this last point, it is irrelevant to the present consideration.

27. Against this submission for the EMB, three points must be noted. Firstly, the materials before the court do not show the mechanism whereby a school deleted from the POA School List can be put back onto the list in subsequent years.

28. Secondly, the evidence filed does not show that after the School had been deleted from the POA School List for 2003/04, fresh deliberations and decisions were taken subsequently on whether the School should remain excluded from the List or be added back to it, and whether the School could resume recruitment of primary one students. What appears from the evidence is that in the following year in December 2003, the School was told that government aid for operating the whole School would cease in September 2004 (the second decision challenged by the applicant). This effectively puts beyond consideration any possible inclusion in the POA School List or recruitment of primary one students for 2004/5 and the subsequent years.

29. Thirdly, Mr Yu SC informs the court that a circular had been issued to the schools to the effect that if a school cannot recruit sufficient students to operate primary one class for a particular year, the school will not be put on the POA School List in the subsequent years, unless there are changes in the circumstances, such as changes in demand brought about by increase in population in the nearby locality. This is said to represent a practice that has been introduced since 1992. It is also said that, in the normal course, it would be very odd for the EMB to put such a school back onto the POA School List. As Mr Yu SC acknowledges, it is rather unlikely for such a school to re-join the POA system, and the likely scenario is the school will, barring special circumstances, cease operation in 6 years time.

30. Thus analyzed, it cannot be said that the applicant's case that the 1st Decision does not have a time frame and is not restricted to the school year 2003/04 is doomed to fail or potentially unarguable. Further, even if the decision on whether to include a school on the POA School List is an annual exercise, it cannot be said that the 1st Decision is plainly a free-standing decision on its own that has no effect on the School's ability to participate in the POA exercise and to recruit primary one students in the subsequent school years. The applicant's argument that the far-reaching consequences of the 1st Decision were only felt much later on is also not absolutely devoid of merits. Considering these matters and the circumstances of the case as a whole, I am persuaded that there are good reasons for extending the time to enable the challenge to the 1st Decision to be made.

The issue has become academic?

31. It is also, in my view, not a plain and obvious case for setting aside the leave granted or striking out the relief sought on the ground of delay. The EMB argues that it is academic to seek to re-open the decision made in 2002 in that the POA exercise for 2003/04 had been completed, and since it did not take part in the POA exercise for 2003/04, the School had not operated primary one class in 2003/04. I do not consider the applicant's challenge to the 1st Decision to be entirely without practical purpose. For reasons explained above, the validity of the 1st Decision arguably may have a bearing on whether the School is able to participate in the future POA exercises and to recruit primary one class. As the EMB's recent letter to Wah Shan Public School dated 20 May 2004 shows, the EMB has now decided to reconsider whether to permit some of the schools, which were not allowed to participate in the POA for 2003/04 and to operate primary one class in 2003/04, to participate in the POA exercise for 2005/06. The School had requested the EMB to give it similar reconsiderations, but the EMB has yet to respond to it. Moreover, whether the School will be allowed to participate in the POA exercise for future school years will in turn impact upon whether it can operate primary one class in future and be able to continue its operation as a whole.

Re-opening the decision detrimental to good administration?

32. The EMB also argues that it is detrimental to good administration to re-open the decision made in 2002 and implemented in 2003. It is said that, including the School, there were 24 schools that were not approved to operate primary one class in 2002/03 with government subvention and subsequently did not take part in the POA exercise for 2003/04. Additionally, it is pointed out there were 51 schools that had taken part in the POA exercise for 2003/04 but were not granted aid to operate primary one class for that school year because they could not recruit sufficient number of students. The EMB argues that re-opening the decision made in 2002 may have a floodgate effect and may cause great administrative complications to the government.

33. It is not entirely clear what decision the EMB is referring to in advancing this argument. The references to 23 other schools and a further 51 schools that had not been given government aid to operate primary one class in 2002/03 and 2003/04 respectively suggest that the EMB may be labouring upon the decision not to grant aid to the School to operate primary one class in 2002/03. As noted above, this is not the decision challenged.

34. Insofar as this argument is directed at the 1st Decision under challenge herein, much of its force is undermined by the EMB's recent decisions. In March and May 2004, the EMB decided to allow 28 and 31 schools, which were not allowed to operate primary one class in 2003/04 and 2004/05 respectively, to undergo a special review. Depending on the result of the special review, these schools may be allowed to resume recruitment of primary one students for 2005/06. Effectively the EMB had re-opened its earlier decisions with regard to these schools and will have to deal with whatever administrative complications that ensue. Further, it is not said and there is no material to show what additional complications will arise if the challenge to the 1st Decision is successful and the School was to be allowed to participate in the POA and to recruit primary one students for future school years.

35. For the reasons aforesaid, the EMB has failed to demonstrate that this is a plain and obvious case for setting aside the leave granted or of striking out the relief sought in the Form 86A. Paragraph 1 of the EMB's summons is therefore dismissed. The applicant is granted an extension of time to apply for judicial review.

Directions on further conduct of the proceedings

36. Paragraph 2 of the summons seeks, by way of alternative relief, an extension of time for the EMB to file evidence in opposition. Given that the substantive application has been set down for 12 July 2004 and the EMB already has, under the Rules of the High Court, 56 days to file opposition evidence, any extension will take the time for filing evidence beyond the scheduled hearing date. The parties agree that an early resolution of the application is desirable since the new school term will commence in September 2004. The EMB therefore does not press for an extension of time. In the circumstances, no order is made on paragraph 2 of the summons.

37. On the other hand, Mr Kwok accepts that amendments to the Form 86A are necessary to reflect, among other matters, that the 1st Decision was made by the then Education Department, whose duties have since been assumed by the Permanent Secretary for Education. Subsequent to the hearing, the Amended Form 86A was filed.

38. Mr Kwok also indicates at the hearing that the applicant may need to file evidence in reply to the EMB's opposition affidavit. With a view to expediting the hearing of the substantive application, I make the following directions:

(1) The respondent files and serves the affidavit in opposition by 3 July 2004.

(2) The applicant has leave to file and serve affirmation in reply by 8 July 2004.

(3) There is liberty to apply.

Costs

39. The normal course of costs follows event applies. There is an order nisi that the EMB pays the applicant the costs of this summons, to be taxed if not agreed. The applicant's own costs be taxed in accordance with the Legal Aid Regulations.