WONG CHUN PONG v. THE HONG KONG INSTITUTE OF EDUCATION

CACV 48/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 48 OF 2013

(ON APPEAL FROM HCAL NO. 15 OF 2013)

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J U D G M E N T

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Hon Macrae JA (giving the judgment of the Court):

1. The applicant, who was at the time of the original application a student member of the Council of the putative respondent, namely The Hong Kong Institute of Education (“the Institute”), was refused leave on 4 March 2014 by McWalters J (“the judge”) to judicially review the decision of the Council excluding him from voting and actively participating in the Search Committee for the new President of the Institute.

The relief originally sought

2. In particular, the applicant had sought an order of certiorari to bring up and quash the decision of the Council made on 22 June 2012 (later confirmed at a subsequent Council meeting on 28 September 2012), by which the applicant was excluded from voting and actively participating in the Search Committee for a new President of the Institute; a declaration that such a decision contravened and was otherwise inconsistent with section 9 of The Hong Kong Institute of Education Ordinance, Cap 444 (“the Ordinance”) when read in conjunction with section 11(7) of the Ordinance and was thereby unlawful and unreasonable; and, further or alternatively, a declaration that the decision and/or section 11(7) of the Ordinance contravened or was otherwise inconsistent with (i) Articles 25 and 39 of the Basic Law, (ii) Articles 1(1) and 22 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the Hong Kong Bill of Rights”), and (iii) Articles 2 and 26 of the International Covenant on Civil and Political Rights (“the ICCPR”), and was unconstitutional and had no effect.

3. The two issues to which the relief sought was directed were summarised by the judge as follows:

 (1)  The construction of section 11(7) of the Ordinance which led the putative respondent to making the impugned decisions (the first issue); and

 (2)  Whether section 11(7) of the Ordinance is unconstitutional as contravening the right against discrimination (the second issue).

The judge’s decision

4. In respect of the first issue, the judge held that the applicant had passed the reasonable prospects of success test but nevertheless exercised his discretion not to grant leave on the basis that there was no real prejudice to the applicant, since he was not prevented from voicing his opinion at the Search Committee meeting nor was there any suggestion that he would have voted differently from other members of the Search Committee had he been allowed to vote; that the application was academic since, even if he had voted against the resolution, it could not have affected the outcome; that the application was out of time in seeking relief and there had been no satisfactory explanation for the delay; and, notwithstanding that there would be some future benefit to resolving the issue, there would be considerable prejudice to the putative respondent if leave were granted by virtue of the applicant’s delay in seeking relief.

5. In respect of the second issue, the judge considered that the argument had no reasonable prospects of success and refused leave on the basis that there was a clear distinction, and good reason for the distinction, on the face of the legislation between members of the Council who were allowed to vote on the appointment of the President and those who were not; that those who were not allowed to vote acquired their membership of the Council because of their association with the putative respondent which gave them an interest in the outcome and thereby a potential conflict of interest; and that the distinction which warranted their being deprived of the right to vote on the appointment of the President was a policy matter which did not concern the court but arguably provided a lawful justification for the making of the distinction.

The relief sought by this application

6. In appealing against the judge’s refusal to grant leave, Ms Jocelyn Leung for the applicant made clear at the outset that, should leave be granted, she was not seeking to disturb the appointment of the President which had been made in the wake of the judge’s ruling of 4 March 2013.  She was content to seek leave in respect of the declarations originally sought and/or any other declaratory relief which would state the correct position in law.  When, in the course of argument, the Court expressed its concern at the potential, if not inevitable, effect of the existing declarations sought on the appointment of the current President, Ms Leung re-drew the ambit of the relief she sought as follows:

 (1)  A declaration that the restriction on the student Council member voting and participating in any deliberation on the appointment of the President under section 11(7) of the Ordinance only concerns the appointment process in the Council of the Institute; and

 (2)  A declaration that section 11(7) of the Ordinance contravenes or is otherwise inconsistent with (i) Article 25 and 39 of the Basic Law; (ii) Article 22 of the Hong Kong Bill of Rights; and (iii) Article 26 of the ICCPR, and is unconstitutional and has no effect.

A consideration of the first issue

7. The applicant’s argument is that the student Council member should be permitted to participate and to vote on the appointment of the President at the Search Committee stage.  Indeed, the first declaration sought seems to accept that there is a distinction between any deliberation and voting process at the Search Committee stage and the final appointment process by the Council.

8. The difficulty which the applicant faces, however, is that there is no legislative prescription for the creation or operation of a Search Committee for the President of the Institute in the Ordinance.  Whilst it is true that, under section 9(3) of the Ordinance, “the Council may in writing, with such restrictions or conditions as it thinks fit, delegate to a committee any of its functions”, one of the excepted functions it cannot delegate to a committee, under section 9(3)(b), is “the appointment or dismissal of the President or a Vice President”.

9. It so happens on this occasion (as happened on a previous occasion) that a Search Committee was set up to consider the appointment of the President of the Institute.  But there is nothing in the Ordinance to say that such a process must happen or that it will ever happen again.  What is also clear is that such a committee cannot be the decision-maker, by virtue of section 9(3)(b) of the Ordinance: the appointment of the President can only be performed in accordance with section 11(6) “by a resolution passed by not less than 2/3 of the members of the Council who are present at a meeting of the Council and competent to vote on the matter”.  Section 11(7) stipulates that a student Council member “shall not participate in any deliberation or vote on the appointment… of the President…”.

10. We cannot see, therefore, how any declaratory relief can assist the applicant (or any future would-be applicant in his position) in relation to a Search Committee, which is neither required by statute nor capable of making any decision as to the appointment of the President, let alone one susceptible to judicial review.  We do not need to deal with the subsidiary question of whether, in the event that such a committee is again formed in the future (which it may not be), a student Council member can do anything more than be present as an observer, given that, by section 11(7), he “shall not participate in any deliberation”, let alone vote, on the appointment.

11. In our judgment, and with due deference to the view of the judge by which we are not bound, the first issue is not reasonably arguable and has no realistic prospects of success which might justify the declaratory relief sought.

A consideration of the second issue

12. In relation to the second issue, it is right as we have just seen that the student Council member is expressly prohibited from deliberating or voting on the appointment of the President.  However, he is not alone in this exclusion.  Also prohibited under section 11(7) of the Ordinance from deliberating or voting on the appointment of the President are those nominated by the Academic Board from among its number and appointed by the Council (section 8(1)(d)), as well as those elected by full-time teaching staff and eligible administrative staff from among their respective number (section 8(1)(e)(i) and (ii)).

13. Mr Jeremy Chan, for the putative respondent, argues with some force that there is good reason for the distinction in voting powers.  Those who are permitted to participate in any deliberation or vote on the appointment of the President under section 11(7) of the Ordinance, when read in conjunction with section 8(1), are the President (section 8(1)(a)); the Vice Presidents, if any have been appointed (section 8(1)(b)); no more than 3 public officers appointed by the Chief Executive (section 8(1)(c)); no more than 14 other persons appointed by the Chief Executive, who shall be neither public employees nor employees of the Institute, but of whom at least 5 shall be considered by the Chief Executive to have relevant experience in commerce, industry or a profession in Hong Kong (section 8(1)(f)(i)), no more than 3 shall be persons considered by the Chief Executive to have had relevant experience in higher education, either in Hong Kong or elsewhere (section 8(1)(f)(ii)), and no more than 3 shall be persons considered by the Chief Executive to have had relevant experience in education, other than higher education, either in Hong Kong or elsewhere (section 8(1)(f)(iii)).

14. Those who are not permitted to participate in any deliberation or vote on the appointment of the President are, as we have seen, those nominated by the Academic Board and appointed by the Council (section 8(1)(d)), those elected by the full-time teaching and administrative staff (section 8(1)(e)), and the full-time student member of the Institute appointed by the Council (section 8(1)(g)).

15. There is, says Mr Chan, a qualitative difference between those appointed externally to the Council by the Chief Executive on account of either their capacity as public officers or their relevant experience and expertise in commerce, industry, the professions, education or higher education on the one hand, and those nominated, elected or appointed internally from the Academic Board, teaching or administrative staff or the student body of the Institute on the other.  Those appointed externally by the Chief Executive are independent of the Institute but bring specialist skills, authority and expertise to the Council: those appointed or elected internally are connected with various facets of education or the Institute itself.  Accordingly, those who may elect the President are appointed by the Chief Executive externally: those who may not elect the President are those appointed or elected internally from within the education system.  Mr Chan submits that the statutory provisions give recognition to the qualitative difference in the categories of Council members who may appoint the President: they are not ‘discriminatory’ in any illegitimate or unlawful sense.

16. The judge accepted this distinction and rationalised it on the basis of avoiding a potential conflict of interest by prohibiting those associated in some way with the Institute from voting for the President.  Ms Leung observes, however, that if that were the rationale for the distinction, the President and Vice Presidents (if any have been appointed) are also entitled to participate in the deliberation or vote on the appointment of the President, yet they are not appointed by the Chief Executive and they would necessarily be intimately involved with the functioning of the Institute.  That is true, although their position is somewhat hybrid, since their appointments are themselves made by those appointed by the Chief Executive.

17. Mr Chan does not go so far as to adopt this explanation or justification for the distinction. Rather, he places emphasis on the distinguishing features of the external categories of Council members, all of whom (unlike the internal categories of Council members) are independently appointed by the Chief Executive himself; and all of whom bring varied experience, authority and specialist skills (not only in the field of education) to the supervision and direction of the Council.

18. In our judgment, whether potential conflict of interest is or is not the feature which justifies the distinction between those who may vote for the President and those who may not, there is no fundamental right infringed by the Ordinance which calls for the remedial protection of the courts.  The legislature has determined that in this sphere of social life, namely providing inter alia for teacher training and education, the Chief Executive should retain the authority to appoint independent members of the community with particular and relevant skills and experience to the Council of the Institute, who will in turn appoint the President of the Institute.  In our view, this is a policy matter which the courts are ill-equipped to challenge or gainsay.  As Ma CJ said, in giving the judgment of the Court in Fok Chun Wa & Anor v Hospital Authority & Anor [2012] 2 HKC 413, at 441:

“Where core values or fundamental concepts are involved, these are areas where the courts have (for want of better terms) expertise and experience, and it is part of their constitutional duty to protect these values or concepts. In policy matters not involving these matters, the courts do not have this expertise or experience and, more important, it is not within its constitutional remit to determine matters of government or legislative policy, save where questions of legality arise. As Sir Anthony Mason NPJ put it in HKSAR v Lam Kwong Wai[1] at 601E (para 45) ‘the weight to be accorded to the legislative [and I would add, the executive and other authorities’] judgment by the court will vary from case to case depending upon the nature of the problem, whether the executive and the legislature are better equipped than the courts to understand its ramification and the means of dealing with it.”

19. In our judgment, no question of discrimination arises.  The legislature has determined that the President of the Institute can only be appointed by those who have been externally appointed to the Council at the behest of the Chief Executive, as well as those themselves appointed by the external members of the Council.  Whether or not the rationale is the avoidance of any conflict of interest by those appointing the President, which may well be a sound justification, the legislature is in a far better position than this Court to determine the policy behind such appointments.

20. The second issue is not reasonably arguable and has no realistic prospects of success which might justify the relief sought.

Conclusion and consequential orders as to costs

21. Accordingly, the appeal against the refusal by McWalters J of leave for judicial review is dismissed.  We make a costs order nisi that the applicant pay the costs of the putative respondent to be taxed if not agreed, and that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.