FOK HO CHIU v. THE CHINESE TEMPLES COMMITTEE

HCAL 13/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 13 OF 2003

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J U D G M E N T

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1. This is an application for judicial review of the decision of the Respondent not to award the tender for the office of temple keeper of Shau Kei Wan Tin Hau Temple ("the Temple") to the Applicant.

2. The Temple is one of the many Chinese temples in Hong Kong placed under the absolute control of the Respondent pursuant to section 7 of the Chinese Temples Ordinance (Cap. 153) ("the Ordinance").

3. On 29 May 1990, the Respondent first appointed the Applicant to be the temple keeper (or "sz chuk", "司祝") of the Temple. Since then until 30 September 2002, the Applicant's appointment was renewed annually by the Respondent. In 2002, there were newspaper reports that a staff member of the Trust Funds, Temples and Cemeteries Section of the Home Affairs Bureau and a member of the Respondent were arrested for alleged bribery offences. On 5 June 2002, the Respondent resolved that appointment of temple keepers should be by open tender, and asked the Respondent's Secretariat to consult the ICAC to devise a proper set of rules for tender and appraisal. On 13 June 2002, the Respondent informed the Applicant in writing of the new arrangement and enclosed a tender form. The tender was to close on 28 June 2002. However, apparently as a result of suggestions from the ICAC, the intended tender was called off, and instead on 28 June 2002, the Respondent advertised a tender notice in the press inviting tenders based on a new tender procedure in relation to seven temples under the control of the Respondent, including the Temple. The tender notice reads as follows:

"

華人廟宇委員會通告

華人廟宇委員會於二零零二年六月十四日及十九日宣布公開招標競投轄下七間廟宇:-

...

為了增加投標過程的透明度，及配合一個新的遴選制度，上述廟宇管理合約需重新招標。在新的安排下，有興趣投標人士需要先填回一份意向書，以表示有興趣承辦上述廟宇。本會將隨同意向書附上該廟過去兩年的香油收入資料以供參考。華人廟宇委員會的評選委員會將評核申請人士的廟宇管理知識及相關經驗。評核試及格才會被邀請出價競投。

...

... 至於評選及投標結果，華人廟宇委員會保留絕對取捨權。...

華人廟宇委員會署理秘書李達潮

二零零二年六月二十八日"

4. On the same day, a blank standard-form letter of intent to tender was sent to the Applicant, inviting the Applicant to participate in the new tender procedure. Amongst other things, the letter of intent deals with the new tender procedure thus:

"丙. 甄選面試

i) 華人廟宇委員會組成遴選會，邀請每一個表示有興趣投標的人士出席一個甄選面試，以評核各有意投標者在廟宇管理方面的知識及相關經驗。

ii) 順利通過甄選面試後，參加者會被邀請出價投標有關廟宇管理合約。"

5. On 15 July 2002, the Applicant and several other temple keepers of other temples wrote a joint letter to the Respondent complaining, amongst other things, the award of tender on the basis of tender price. The joint letter criticized the Respondent for letting by tender the office of temple keeper, "which completely ignored the contributions to the temples made by the existing temple keepers and caused management of a temple to become a business running".

6. That notwithstanding, on 17 July 2002, the Applicant submitted his letter of intent to the Respondent.

7. On 20 August 2002, the Permanent Secretary for Home Affairs replied to the letter of 15 July 2002 (and it is accepted by Mr Kenneth W H Ng, appearing for the Respondent, that the reply was written on behalf of the Respondent), explaining amongst other things, the new tender procedure. The letter reads in part as follows:

" 至於來信提及的可參與競投廟宇管理合約人士的資格問題，華人廟宇委員會已邀請廉政公署為廟宇管理合約公開招標一事設定一套投標及評審程序，包括一項“資格評核試”(Pre-qualified Test)，這“資格評核試”是委員會經參考對廟宇管理及有關事務具備專業知識和經驗的團體和業內人士的意見擬定的，評核試的內容綱領見附件。具體來說，凡有興趣參與廟宇管理的投標者，在出價競投前必須參加一個由遴選委員會主持的資格評核面試。該遴選委員會由華人廟宇委員會兩名委員及民政事務局一名代表組成。參加者首先要順利通過資格評核試，才會被邀請出價投標個別廟宇。遴選委員會會考慮及比較各參加者的條件如管理能力及知識等，然後才考慮標價。換句話說，這是為確保廟宇管理合約不會純粹以“價高者得”原則批出。..."

8. In the meantime, on 9 September 2002, the Applicant successfully attended the pre-qualified test, and was duly invited to submit his tender for the Temple. According to the evidence filed by the Respondent, there were altogether 42 candidates who had submitted letters of intent in respect of the seven temples in question. 37 of them attended the pre-qualified test, and 27 (including the Applicant) passed the test. So far as the Temple is concerned, amongst the 37 candidates who attended the pre-qualified test, eight were interested in tendering for the office of temple keeper of the Temple. Seven out of these eight candidates passed the pre-qualified test. All seven (including the Applicant) submitted their tenders.

9. Again according to the evidence filed by the Respondent, of the seven tenders submitted in respect of the Temple, the highest tender bid was $680,000.00. The Applicant's bid in the sum of $240,000.00 ranked fifth. At a meeting of the selection committee of the Respondent held on 23 November 2002, the selection committee accepted the highest tender on the basis that it was the highest bid, the selection committee having taken the view that all seven tenderers had passed the pre-qualified test thereby demonstrating their attainment of a certain level of knowledge and ability in temple management. The relevant part of the minutes of the meeting reads as follows:

" 華人廟宇委員會轄下廟宇司祝甄選 (CT 62/2002號通函)

28. 會眾得悉文件所列的廟宇司祝投標結果，九龍城侯王廟及大坑蓮花宮現任司祝以最高標價分別為港幣200,000元及1,280,000元競投。深水埗武帝廟的標價較上任司祝的管理費為低，而佛堂門天后廟沒有人出價競投，會眾同意這兩間廟宇再度公開競投。筲箕灣天后廟及香港仔天后廟亦分別由兩名人仕以港幣680,000元及223,000元競投。

29. 考慮到所有投標人士，均曾參加遴委會在九月六日及九日的甄別評核，確定其在管理廟宇方面的知識和能力達到一定水平，才會獲邀進行競投，會眾同意接納最高標價。"

10. On 4 December 2002, the Respondent informed the Applicant in writing that his tender was not accepted. Upon the Applicant's enquiry of the reason for the rejection of his tender, the Respondent replied on 10 December 2002 that his tender was not accepted because his tender price was not the highest.

11. The Applicant has since successfully obtained leave to apply for judicial review of the decision of the Respondent rejecting his tender.

12. According to the evidence, the highest bidder subsequently abandoned the tender, and the Respondent eventually approached the next highest and willing tenderer, whose bid was $480,000.00 for appointment as the temple keeper of the Temple.

13. However, as a result of the present proceedings, the appointment of a new temple keeper of the Temple has been held in abeyance pending the result of the present proceedings. As I understand it, the Applicant is still acting as the de facto temple keeper of the Temple.

14. Although a number of grounds are relied on in this application for judicial review, the Applicant's complaints boil down essentially to two points:

(1)	the decision of the Respondent is unlawful in that it overlooks and "frustrates" the legislative purpose of the Ordinance;
(2)	it goes against the legitimate expectation of the Applicant that the tender would not be awarded solely on the basis of the tender price without considering the non-pecuniary merits of the tenderers.

15. The preamble of the Ordinance says that the object of the Ordinance, enacted in 1928, is "to suppress and prevent abuses in the management of Chinese temples and in the administration of the funds of Chinese temples".

16. Mr Valentine Yim, appearing with Mr Benny Ho, for the Applicant, also invites the Court to look at the explanatory note set out in the 1928 Bill, describing the objects and reasons of the Bill, as to which Mr Ng does not raise any objection.

17. The more relevant part of the explanatory note reads as follows:

"

Objects and Reasons

...

3. The objects of the bill are:-

(a)	to prevent the exploitation of the ignorant by charlatans;
(b)	to recover for the benefit of the community the control over public temples which have been slipping into private hands; and
(c)	to prevent for the future the establishment of temple as purely business speculations.

4. There has been an alarming growth of pseudo-religious establishments in recent years. Many of the keepers are simply fortune tellers of an unrecognized and objectionable kind. Some of these temples occupy a single floor for a few months at a time until they have dealt with all the dupes of the district, when they move elsewhere.

5. There are some private temples, established originally by private individuals or particular families, which are managed honestly and unobjectionably, though of course the profits go to the private owners. All temples which are clearly of this class will be specifically exempted from the financial control proposed to be set up by this Ordinance. The list of the temples so to be exempted is contained in the Schedule to the Ordinance. There are other temples, originally established by sections of the community for the benefit of the public, which are falling or which have fallen under the control of private individuals. These individuals, or their predecessors, have thus encroached on the rights of the public and can have no claim as against the community to usurp the revenues of these temples. Such temples will be brought under the control of the Ordinance.

6. For the future it is felt that temples should not be private property, conducted for the pecuniary benefit of private individuals. Accordingly, all future temples will also fall under the control of the Ordinance.

7. The main principles of the Ordinance are that, except in the case of the exempted temples, the revenues, funds, investments and properties of all Chinese temples shall be under the control of a strong Chinese Committee, presided over by the Secretary for Chinese Affairs, and that any surplus revenues remaining after providing for due observance of the customary ceremonies and the maintenance of the temple buildings and temple properties shall be applied for the purposes of Chinese charities in the Colony generally.

...

17. Section 9 [i.e. the present section 10] provides that the office of sz chuk, or temple keeper, may be let by tender, and that the Chinese Temples Committee shall have power to determine the conditions of tender. The principal if not the only source of revenue in the case of most Chinese temples is the periodical amount paid by the temple keeper for the privilege of his office. Any tendency on the part of temple keepers to make excessive charges to the public is probably sufficiently checked by the existence of other temples, but it will also in future be subject to control by the Chinese Temples Committee. The section also gives the Chinese Temples Committee power to appoint a sz chuk without tender, and power to remove any sz chuk, whether appointed by them or not."

18. Against the above background, sections 2, 3, 7, 8 and 10 of the Ordinance read as follows:

" 2. Interpretation

In this Ordinance, unless the context otherwise requires-

"Chinese temple" (華人廟宇) includes-

(a)	all Miu (廟, temples), Tsz (寺, Buddhist monasteries), Kun and To Yuen (觀及道院, Taoist monasteries) and Om (庵, nunneries); and
(b)	every place where-
	(i) in accordance with the religious principles governing Miu, Tsz, Kun, To Yuen or Om, worship of gods or communication with spirits or fortune-telling is practised or is intended to be practised; and where
	(ii) fees, payments or rewards of any kind whatsoever are charged to or are accepted from any member of the public for the purpose of worship or communication with spirits or fortune-telling or any similar purpose, or in return for joss candles or incense sticks, or on any other account whatsoever.

 

3. Regulations

(1)	The Chinese Temples Committee referred to in section 7 may, subject to the approval of the Chief Executive in Council, by regulation provide for- (Amended 33 of 1999 s. 3)
	(a)	the registration, management, control and inspection of Chinese temples;
	(b)	the management, control and audit of the funds of Chinese temples;
	(c)	the duties of sz chuk (司祝, temple keepers);
	(d)	contravention of such regulations which shall be offences and prescribing penalties therefor; Provided that no penalty so prescribed shall exceed a fine of $1,000.

[No relevant regulations have been made thus far.]

...

7. Revenues, etc., of all Chinese temples to be under the control of the Chinese Temples Committee

(1)	Notwithstanding anything in the Secretary for Home Affairs Incorporation Ordinance (Cap. 1044), the revenues, funds investments and properties of all Chinese temples shall, subject to the provisions of section 8, be under the absolute control of a committee which shall be known as the Chinese Temples Committee. (Replaced 5 of 1932 s. 2. Amended 33 of 1939 Supp. Schedule; G.N. 840 of 1940; 26 of 1961 s. 2; L.N. 22 of 1969; L.N. 67 of 1985; L.N. 262 of 1989)
(2)	The Chinese Temples Committee shall consist of the following persons-
	(a)	the Secretary for Home Affairs who shall be Chairman of the Committee; (Amended L.N. 22 of 1969; L.N. 67 of 1985; L.N. 262 of 1989)
	(b)	(Repealed 78 of 1999 s.7)
	(c)	the chairman for the time being of the Board of Directors of the Tung Wah Group of Hospitals, or a director of the Board nominated by the chairman as his representative;
	(d)	6 persons appointed by the Chief Executive, who shall each hold office for a period of 3 years, but who shall each be eligible for re-appointment from time to time. (Added 26 of 1961 s. 2 Amended 50 of 1973 s. 2; 33 of 1999 s. 3; 78 of 1999 s. 7)

...

8. Application of revenues of Chinese temples

(1) The revenues of all Chinese temples shall be applied in the first instance to the due observance of the customary ceremonies and the maintenance of the temple buildings and temple properties, and any surplus may be transferred to the General Chinese Charities Fund referred to in section 9.

(2) It shall be in the discretion of the Chinese Temples Committee to decide what are the customary ceremonies of any particular Chinese temple and what amount may be spent on any particular authorized object and what surplus may be transferred to the General Chinese Charities Fund.

...

10. Temple keeper

(1) It shall be lawful for the Chinese Temples Committee to let by tender the office of sz chuk (司祝, temple keeper) of any temple.

(2) It shall be within the discretion of the Chinese Temples Committee to determine the conditions of any tender, the manner in which tenders shall be called for and the powers and obligations of any sz chuk.

(3) Any lump sum paid or any periodical payment made by any person in respect of any tender by him for the office of sz chuk of any temple shall be deemed to be part of the revenue of that temple.

(4) It shall also be lawful for the Chinese Temples Committee, without tender, to appoint any person to the office of sz chuk of any temple.

(5) It shall be lawful for the Chinese Temples Committee to give to the sz chuk of any Chinese temple, whether appointed by the Chinese Temples Committee or not, 1 month's notice in writing terminating the tenure of his office, and upon the expiration of the notice he shall be deemed to have vacated such office and thereafter shall not act as sz chuk of that temple unless re-appointed by the Chinese Temples Committee.

(Amended 33 of 1939 Supp. Schedule; G.N. 840 of 1940)"

19. According to Mr Ng, the actual procedure adopted by the Respondent was a two-stage process. At the first stage, i.e. the pre-qualified test, all intending tenderers' knowledge, experience and ability were tested by the selection committee, without the selection committee knowing the amount of their intending bids. Only those intending tenderers possessing knowledge, experience and ability acceptable to the selection committee would pass the pre-qualified test, and would be invited to submit their bids, which was the second stage of the process. At this second stage, the selection committee's focus of attention was on the tender prices. Since all tenderers possessed the requisite level of knowledge, experience, and ability, the only relevant criterion in choosing the successful tender was the price. At this second stage, the respective knowledge, experience and abilities of the tenderers would not be considered again. Mr Ng submits that this was fully in accordance with the procedure advertised in the tender notice and set out in the letter of intent both dated 28 June 2002.

20. Mr Yim however argues that at the second stage, it was wrong for the committee to ignore the respective knowledge, abilities and experience of the competing tenderers, and simply focus on the tender prices. Mr Yim says that this would frustrate the objects and reasons of the Ordinance, and turn the management of the temples into "purely business speculations". Mr Yim therefore argues that the Respondent, by adopting the two-stage procedure admitted by Mr Ng, has lost sight of the legislative purpose, and has thus erred in law; the resulting decision is liable to be quashed: Padfield v. Minister of Agriculture Fisheries and Food [1968] AC 997.

21. I do not accept Mr Yim's argument, despite the very attractive way that it has been presented by counsel. I accept that one of the objects and reasons of the Ordinance is to prevent the establishment of temples as purely business speculations. Temple keepers obviously play a very important role in the day-to-day management and running of temples. As has been recognized by the Respondent, on the evidence before me, the selection of temple keepers cannot be based solely on the tender prices, or the revenues that may be received by the Respondent from their appointment. Temples should not be run as purely business or commercial concerns for profit. The religious background of temples must be fully borne in mind and jealously guarded. To that extent, I am fully in agreement with Mr Yim's general observations regarding the appointment of temple keepers.

22. However, I cannot accept Mr Yim's further argument that the two-stage selection process actually adopted by the Respondent in the present case violated or ignored the above considerations. In my judgment, the knowledge, experience and ability, as well as the "genuineness" of the intending tenderers have been adequately tested and assessed at stage one of the process, i.e. the pre-qualified test, which was designed precisely to screen out those who did not have the requisite knowledge, ability and experience to run temples, and those who perceived the office more as a commercial or business opportunity than as a religious office or responsibility.

23. In my judgment, the material objects and reasons behind the Ordinance have been fully taken into account and taken care of at the first stage of the two-stage tender process. That being the case, I do not see any real criticism over the second stage of the process, which focused on the tender prices. Ex hypothesi, all the tenderers possessed the necessary knowledge, experience and ability and were genuine tenderers (in the sense explained above), as was demonstrated by their passing of the pre-qualified test. Everything being equal in that sense, there was, in my judgment, nothing wrong for the selection committee to focus solely on the tender prices at this second stage.

24. It is true that under this two-stage process, the selection committee may not necessarily have selected the best-qualified person to be the temple keeper, in terms of his or her knowledge, ability and experience. For it is trite that the tenderer of the highest bid may not necessarily have been the person possessing the greatest knowledge, experience and ability in the field. But in my judgment, this is no criticism at all in the present context. Nothing in the Ordinance, or the objects and reasons behind the Ordinance, and certainly nothing in section 10 empowering the Respondent to let by tender the office of temple keeper, requires the Respondent to only select the best qualified person in terms of knowledge, experience and ability to be the temple keeper. Section 10 gives the Respondent a very wide discretion. In my judgment, so long as the decision does not ignore or frustrate the objects and purposes of the Ordinance, it cannot be described as being unlawful or illegal.

25. In the present case, it is perfectly legitimate, in my judgment, for the Respondent to adopt a tender procedure which first requires a tenderer to demonstrate a minimum standard of knowledge, experience and ability and a sufficient degree of religious (as opposed to commercial/business) sincerity in tendering for the job, which is to be determined by the pre-qualified test, and then seeks to generate the highest revenue for the Respondent by choosing the highest tender bid amongst those put in by the qualified tenderers. In that way, both the quality as well as the revenue to be generated from the office are guaranteed.

26. As has been put, perhaps rather bluntly, during the hearing, the Ordinance does not prohibit the Respondent from choosing a mediocre (yet sincere and able-enough) temple keeper, if he or she is able to bring in the highest revenue to the Respondent in terms of his or her tender price; there is no law requiring the Respondent to choose the best-qualified temple keeper.

27. For the sake of completeness, I should add that no reliance is placed on Wednesbury unreasonableness in the present application, which is therefore not in issue.

28. In conclusion, I reject the Applicant's first argument.

29. Turning to the Applicant's second argument based on the doctrine of legitimate expectation, Mr Ng does not dispute that the doctrine may apply in the present case. Mr Yim says that this is a case of procedural legitimate expectation. He relies on that part of the letter of reply written on behalf of the Respondent on 20 August 2002, which has been extracted above, as basis for the legitimate expectation in question. In essence, Mr Yim argues that the extracted portion of the letter clearly says that not only knowledge, experience and ability would be considered at stage one of the tender process (i.e. the pre-qualified test), the same would also be considered at stage two of the process when the selection committee would consider the respective competing tenders from those who had passed the pre-qualified test. Mr Yim therefore argues that the actual procedure adopted by the Respondent, as admitted by Mr Ng, did not follow the procedure represented in the letter of 20 August 2002. Thus, the doctrine of legitimate expectation is engaged.

30. Mr Ho does not accept that the relevant part of the letter means that at stage two of the process, the knowledge, experience and abilities of the tenderers would be considered again by the selection committee. In any event, Mr Ho argues that the procedure represented in the letter is ambiguous, and it is not sufficiently clear and unambiguous to found a legitimate expectation: Ng Siu Tung v. Director of Immigration [2002] 1 HKLRD 561, 603-604 (paras. 103 and 104) (a case on substantive legitimate expectation).

31. I do not agree with Mr Ng's submission. In my judgment, on a fair reading of the letter of 20 August 2002, the procedure represented to the Applicant and his fellow temple keepers was that the knowledge, experience and abilities of the tenderers would be considered both at the pre-qualified test stage as well as the second stage. Not only is this clear from the sequence of the two most important sentences in the letter which dealt firstly with the pre-qualified test and secondly with the tender prices (i.e. "參加者首先要順利通過資格評核試，才會被邀請出價投標個別廟宇。遴選委員會會考慮及比較各參加者的條件如管理能力及知識等，然後才考慮標價。"); the use of the phrase "遴選委員會會考慮及比較各參加者的條件如管理能力及知識等" could only be, in the context, a reference to the second stage of the process. This is because according to the evidence, at the pre-qualified test stage, there was no question of the selection committee "comparing" (比較) the respective knowledge, experience and abilities of the intending tenderers. All that the selection committee was concerned with at the pre-qualified test stage was, according to the evidence, that the particular intending tenderer possessed the requisite or minimum standard of knowledge, experience, ability and sincerity to become a temple keeper. It was not concerned with comparing those qualities of the intending tenderers inter se. From the evidence, it is obvious that it was only at the second stage that one could meaningfully talk about comparing the respective knowledge, experience and abilities of the tenderers amongst themselves, in order to arrive at a decision on the successful tender.

32. Thus analysed, I have no doubt that the correct interpretation of the representation made on behalf of the Respondent, which is a matter for the court (see Ng Siu Tung, at p. 627, para. 194), is the one contended by Mr Yim. In other words, there has been made a clear and unambiguous representation on behalf of the Respondent that the knowledge, experience and abilities of the tenderers would be taken into account by the selection committee of the Respondent not only at the pre-qualified test stage but also at the tender stage. In my judgment, that is sufficient to found an argument based on legitimate expectation. This was a statement of procedure represented by the Respondent to the Applicant and his fellow temple keepers. As analysed above, this was not a necessary procedure to follow in order not to frustrate the objects and purposes of the Ordinance. However, there was nothing to stop the Respondent from adopting such a procedure, in the light of the very wide discretion given by section 10 to the Respondent in relation to the appointment of temple keepers. And once that specific procedure was represented and promised by the Respondent to the Applicant and his fellow temple keepers, in the absence of special circumstances, that promise had to be kept.

33. Mr Ng argues that the doctrine of legitimate expectation would only operate to affect a decision if there was unfairness. He argues that although the letter of 20 August 2002 which contained the relevant representation was sent to the Applicant prior to his submitting his tender, there is no evidence from the Applicant that his tender was affected by the representation contained in the letter. Therefore Mr Ng argues that no unfairness resulted from the Respondent's departure from the represented procedure in carrying out the second stage of the tender process.

34. Mr Yim does not accept that unfairness must be present in order for the doctrine of legitimate expectation, particularly in the case of a procedural legitimate expectation, to operate. He refers me to R v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299; R v. Governors of the Sheffield Hallam University, ex parte R [1995] ELR 267; and R v. North & East Devon Health Authority, ex parte Coughlan [2001] QB 213, in support of his proposition.

35. For the purpose of deciding the present application, I need not express any definite view on the matter. In my judgment, the argument of Mr Ng fails on the facts. First, the lack of unfairness focused on by Mr Ng only represents part of the picture. It is the Applicant's case that the Respondent, in accordance with the represented procedure, ought to have taken into account and compared the respective knowledge, abilities and experience of the tenderers at the second stage of the tender process, before deciding on the successful tender. That was not done. Mr Ng accepts in submission that he is unable to say on the evidence that even if the Applicant's knowledge, ability and experience had been taken into account by the selection committee of the Respondent at stage two, his tender would nonetheless have been rejected. Mr Ng expressly disavows the intention of running such an argument. In those circumstances, it must have been unfair to the Applicant when the selection committee of the Respondent departed from its represented procedure and failed to take into account the Applicant's knowledge, ability and experience in the field and to compare the Applicant's knowledge, ability and experience with that of his competitors, before deciding to reject the Applicant's tender.

36. Secondly, I am of the view that on the evidence, and given the general circumstances of the case, it is legitimate to draw the inference that the tender price of the Applicant which was submitted after the representation made in the letter of 20 August 2002, must have been affected by the representation that the tender would not only be judged by reference to price but also the knowledge, ability and experience of the individual tenderer at stage two of the process. After all, in paragraph 42 of the Applicant's Form 86A, the factual contents of which were confirmed by the Applicant's supporting affirmation, the Applicant specifically said that the decision of the Respondent rejecting his bid was "contrary to the Applicant's legitimate expectation and thus it was unfair to the Applicant". Paragraphs 44 and 45 went on to set out the representation made to the Applicant on behalf of the Respondent in the letter of 20 August 2002. Read in its entirety, in my judgment, it is legitimate and reasonable to draw the inference that the Applicant was there complaining, amongst other things, that the represented procedure had affected the tender price he submitted to the selection committee, and thus it was unfair not to follow the represented procedure. In my judgment, that is only a very natural and obvious inference to draw. It accords with commonsense.

37. For these reasons, I also reject Mr Ng's argument that the element of unfairness, if it must be present in the present context, is absent here. In conclusion, I am of the view that the doctrine of legitimate expectation applies in the instant case. By not following its own represented procedure, the Respondent has violated the Applicant's legitimate expectation in the matter, and in the absence of any special circumstances, the resulting decision of the Respondent is liable to be quashed.

38. So far as special circumstances are concerned, none has been suggested. The highest and willing bidder, despite his obvious knowledge of the present proceedings, has not sought to be joined as a party to these proceedings. In any event, in my judgment, any prejudice to the highest and willing bidder would be "false" in the sense that if the Respondent had followed its represented procedure in the first place, there would be no guarantee that such a highest and willing bidder would necessarily have been successful in the tender. Disturbing the tender result would not have the effect of taking away something that the highest and willing bidder (or indeed any other bidder) could say for sure that it would have had if the Respondent had followed its promised tender procedure. After all, as was specifically set out in the tender notice, the Respondent reserved to itself the absolute discretion in appraising the tenders and determining the result (which was only subject to the subsequently represented tender procedure).

39. Having considered the entire circumstances of this case including the specific matters discussed above, I have come to the conclusion that the decision of the Respondent, rejecting the Applicant's tender, should, in the exercise of my discretion, be quashed on the ground of legitimate expectation only. Apart from quashing the decision, both sides agree that the Respondent should be directed to carry out the stage two tender process again. I should, however, add that during submission, there were suggestions made to the effect that it is indeed open to the Respondent, before actually conducting the second stage of the tender process again, to undo, as it were, the legitimate expectation of the Applicant and his fellow tenderers (who are qualified to take part in the second stage tender process), by retracting clearly and with sufficient notice to the Applicant and all those concerned, the previously represented procedure and by making it clear to them that in the new stage two tender process, only the tender prices will be considered by the Respondent, the intending tenderers having all passed the pre-qualified test. Mr Yim seems to have accepted in submission that it would be possible as a matter of principle and in accordance with the law on legitimate expectation for the Respondent to undo the legitimate expectation in the way suggested above. Whether the Respondent would seek to undo the legitimate expectation arising from the letter of 20 August 2002 is of course a matter entirely for the Respondent to decide, and whether any such attempt, if made, would be successful is yet another matter. There is thus far nothing on the table, and I should not be taken as having expressed any opinion, let alone definite opinion, on the matter.

40. In conclusion, I order that the decision of the Respondent made on 23 November 2002 and communicated to the Applicant by letter on 4 December 2002 rejecting the Applicant's tender for the office of temple keeper of the Temple be brought up and quashed. I further direct, by consent, that the Respondent do carry out the second stage of the tender process again in respect of the letting of the office of temple keeper of the Temple.

41. Finally as regards costs, I make a costs order nisi that the costs of and occasioned by these proceedings be paid by the Respondent to the Applicant, such costs to be taxed if not agreed. Unless either party applies to vary this costs order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

42. Lastly, I would like to thank counsel for their helpful assistance.