R v. THE ENGLISH SCHOOLS FOUNDATION

HCAL 61/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.61 OF 2004

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

Introduction

1. This is an application for judicial review of a decision made on 15 April 2004 by the respondent, the English Schools Foundation ('the ESF'), to expel the applicant, whom I shall call R, from Kennedy School, a primary school operated by it, and to deny him a place at any other ESF school.

2. At the time of his expulsion, R was ten years old and was in Kennedy School's senior year. If not for the decision under challenge, R would have expected in the ordinary course of events to have graduated from Kennedy School and at the beginning of the new school year to have secured a place at an ESF secondary school.

3. The decision to expel R from Kennedy School was founded on a history of R's violent conduct and the perceived risk such conduct presented to other pupils.

4. This application gives rise to three issues. The first is whether the decision to expel R and to deny him a place at any ESF school was a decision subject to judicial review; that is, whether this Court has jurisdiction to determine the matter. The second issue is whether the decision was vitiated by procedural unfairness. The third issue is whether the decision was irrational in that, having regard to all relevant circumstances, it was not a decision open to a reasonable decision-maker.

Background

5. R began his schooling at Kennedy School in the most junior class (P1) in September 1998. It appears that he was always recognised as intellectually talented. In the 2000-2001 academic year, however, the staff of the school noted that he experienced difficulties in maintaining friendships with other children, these difficulties seeming to have their cause in a tendency towards outbursts of violence.

6. In the result, in the 2001 summer holidays R was examined by a psychologist. While the psychologist recognised what he described as R's 'social-relational difficulties', he did not believe they were the result of any formally recognised psychological condition. He was of the view that the difficulties sprang rather from the fact that R was a gifted child and tended towards an 'oppositional stance', being easily irritated and quick to lose his temper.

7. At the end of the 2001-2002 academic year, R's class teacher observed that R still found it difficult to build up friendships. The teacher noted :

" There were several worrying playground incidents over the year where R lost his temper with other children and was unable to control himself."

8. In the 2002-2003 academic year, R began weekly counselling sessions with the school nurse who possessed a master's degree in guidance and counselling. In an affidavit dated 9 July 2004, the nurse said that R could be 'a pleasant and polite boy'. However, she was of the opinion that R often had difficulty in accepting a viewpoint different to his own and had a strong sense of being in the right. It was often when his peers questioned his judgment or he questioned their's that matters escalated into an angry outburst.

9. In the following academic year (2002-2003), R's difficulties endured. His class teacher noted that R was 'verbally superior' to his peers and exercised this superiority, never conceding that he may be at fault. She recommended more intensive and specialised help than she believed the school was able to offer. In respect of R's tendency towards violence, she wrote :

"R had few friends ... and frequently encountered problems on the playground. These problems often took up a lot of class time. He frequently thumped others, snatched equipment from other children and was rude to his peers."

10. At about this time, it appears that R's parents arranged for their son to see a local psychologist in private practice.

11. In the 2003-2004 academic year, R's final year at the school, an attempt was made to assist R in the classroom by establishing a 'circle of friends' for him. This programme was put in place after R had been involved in a violent incident with another boy. The programme ran for several weeks and was believed to have materially boosted R's self esteem. However, on 5 March 2004 another violent incident took place. R was seen chasing another boy and had to be physically restrained by a teacher. As a result of this incident, it was determined that R should spend his school breaks with a member of staff rather than playing with other pupils.

12. At this juncture it should be noted that, in investigating the various incidents in which R was involved, the staff of the school found that R's conduct was invariably provoked by what R perceived to be insults or teasing. It was, however, R's disproportionate reaction to these insults or episodes of teasing that so concerned the staff of the school.

13. On 23 March 2004, matters came to a head. It appears that at the commencement of the morning break, R was on his way to spend the time with a teacher when he became engaged in a confrontation with another boy. R believed that the other boy, whom I will call E, was taunting or teasing him. When he was interviewed, R recollected the incident in the following terms :

" I came out of the classroom during break. E was standing outside classroom. He was with [other students]. As I walked past, E insulted me. E said 'Red as a raspberry' and I don't know what it meant. I am not sure why I got mad. I held him by the throat and E slumped to the ground. I thought he was joking and told him to get up."

14. A teacher who was called to the scene was alarmed by what she saw. In a statement made at the time, she said :

" I saw a boy lying on the floor. I bent down briefly to look at his face. I was shocked to see that his eyes were looking upwards and were not moving or focusing. Another boy who I knew to be R was standing near the boy and saying 'I'm sorry'. The boy on the floor was not moving and appeared to be in a state of shock or part consciousness."

15. Fortunately, E suffered no lasting hurt and was able to return to class that same morning. The school conducted an urgent investigation. R himself was not interviewed but statements were taken from E and other witnesses, both students and teachers.

16. The acting principal of Kennedy School consulted with the chairman of the School Council and sought the opinion of the Acting Chief Executive of the ESF, Mr John Bohan. In a file note, Mr Bohan recorded the following :

"After studying the witness statements and accompanying material, I concur with the Acting Principal of Kennedy School, the School Council Chairman and the School Improvement Officer (Primary) that R will, with regret, have to be excluded from Kennedy School. Furthermore, it will not be possible to admit him to another ESF school.

The anger outbursts are unpredictable but regular. He represents a considerable risk to other students. Some are afraid of him. ESF has a duty of care to the other students which must not be compromised. In view of this latest very serious incident R cannot be allowed to attend an ESF school."

17. On 26 March 2004, R's parents were informed of the decision to expel their son. The parents, however, insisted that such a decision could only be reached after full and fair procedures had been followed which included consulting with them and interviewing their son to obtain his version of events.

18. As a consequence, on 30 March 2004 a meeting took place at which most interested parties were present. These included R's parents, Mr Brohan, the Acting Principal of Kennedy School and the Chairman of the School Council. During the course of the meeting the parents were able to make extensive representations, detailing the history of their son's difficulties and expressing their concerns as to the manner in which the decision to expel him had been reached.

19. The meeting was tape-recorded. Transcript reveals that the meeting was concluded on the basis of the following undertakings given to R's parents :

(i) That the decision to expel R would be reviewed.

(ii) That the ESF educational psychologist would be consulted.

(iii) That R would be given the opportunity to put his side of the story.

(iv) That R's parents would have the opportunity to make representations.

(v) That, after listening to both R's parents and R, a final decision would then be made.

(vi) That a meeting would be held early the following term to enable R's parents to make their representations.

20. The meeting concluded with the Chairman of the School Council saying :

" We are very concerned about R and we want to understand what's led up to this, and we want to make an objective and fair risk assessment. And you must have the opportunity to explain everything to us properly, and you lad as well.

...

And we're looking forward to meeting with you as soon as ... Paul will coordinate the date. We will make the time and sit down together ..."

21. In the days that followed, R was interviewed (in the presence of his father), the educational psychologist submitted a written history and R's parents were able to submit written material.

22. A further meeting was held on 15 April 2004. This meeting was not tape-recorded. However, R's mother, I believe, was permitted to make notes. From those notes, it appears that, after some preliminary discussion focused on R's need for professional medical help, R's parents were informed that the school had determined that R constituted a danger to the other pupils and should be expelled. R's parents were informed that the ESF itself stood by this decision.

23. R's parents protested that, on the basis of what had been agreed at the earlier meeting, they understood that they would be given an opportunity to state their case and only then would a final decision be made. As that was not the case, they saw no purpose in remaining at the meeting. R's mother left a copy of the notes that would have formed the basis of her oral representations and she and her husband then left the meeting.

The issue of jurisdiction

24. On behalf of the ESF, Mr Anderson Chow SC submitted that, in determining that R should be expelled and not admitted to any other ESF school, neither the school nor the ESF had exercised any public function nor performed any public duty. In coming to their decision, said Mr Chow, they had acted as a private or domestic tribunal. There was simply no public element involved in their decision nor any public law consequence flowing from it. As such, the decision was not amenable to the exercise of public law jurisdiction by way of judicial review.

25. The traditional test to determine whether a matter was one of public or private law was to look solely to the source of the power being exercised by the decision-maker whose decision was under challenge. Today, however, that single test is recognised as being too restrictive. The seminal judgment on the point is R v. Panel on Take-overs and Mergers ex parte Datafin plc [1987] QB 815 in which Lloyd LJ said the following (at 847) :

"I do not agree that the source of power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock's speech [in the CCSU case]. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review : see R v. National Foint Council for the Craft of Dental Technicians (Disputes Committee) ex parte Neate [1953] 1 QB 704.

But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question in exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as Mr Lever submitted, be sufficient to bring the body within the reach of judicial review. It may be said that to refer to 'public law' in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other."

26. Although the test is no longer restricted to an examination of the source of the power being exercised by the decision-maker, as Lloyd LJ said, the source of the power will often, perhaps usually, be decisive. If the source of power is a statute or subordinate legislation under a statute, then the decision will be subject to judicial review. What then was the source of the power exercised by Kennedy School and the ESF in determining that R should be expelled and should not be allowed entry into any other ESF school?

27. In my judgment, there is nothing to suggest that the source of that power lay in private law. The ESF is not a private foundation which manages private schools. To the contrary, the ESF is a product of statute, that statute being the English Schools Foundation Ordinance, Cap.117 ('the Ordinance'). In terms of s.3 of the Ordinance, the ESF is established as a body corporate with perpetual succession, able to sue and be sued in its own name.

28. The powers of the ESF are set out in s.4 of the Ordinance. In particular, s.4(2) reads :

" Subject to the provisions of the Education Ordinance (Cap.279) the Foundation shall have full power to own, manage, administer and operate within Hong Kong schools offering, without regard to race or religion, a modern liberal education through the medium of the English language to boys and girls who are able to benefit from such an education."

29. Kennedy School is one of the schools owned, managed, administered and operated by the ESF pursuant to its powers under s.4(2). Those powers in turn are subject to the provisions of the Education Ordinance, a statute which consolidates and amends the law relating to the supervision and control of all schools in Hong Kong with the exception only of certain specified institutions : essentially universities, technical institutes, vocational colleges and the like.

30. To ensure its financial viability, the ESF receives a substantial annual grant from Government. It does so on the basis that, as far back as 1965, it was recognised in a white paper on education policy that English schools are necessary to Hong Kong and are entitled to support from public funds. In light of this, the ESF has described itself as being 'a key part of the supporting infrastructure of Hong Kong'.

31. The ESF therefore, and the schools which form part of the Foundation, are public bodies fulfilling public functions. But, as Mr Chow emphasised, public bodies may exercise private law functions as well as public. Indeed, he submitted that, in determining matters of discipline in respect of individual students, both the ESF and the schools which form part of the Foundation act as private or domestic tribunals. I am unable, however, to agree with his submissions in this latter regard. In my judgment, in determining whether a student should be admitted to an ESF school and in determining whether a student should be expelled from an ESF school, both the ESF itself and the individual school are performing a public function not a private one.

32. S.10 of the Ordinance empowers the ESF to make regulations for the 'management, operation, administration and control' of all its schools. It is not necessary for such regulations to be published or laid on the table of the Legislative council. Nevertheless the Court of Appeal has held that all regulations made pursuant to s.10 constitute subsidiary legislation : see English Schools Foundation v. Bird [1997] 3 HKC, 434.

33. Regulations concerning school discipline have been made pursuant to s.10 of the Ordinance. Those regulations therefore constituted subordinate legislation and have the force of law. The regulations do not go directly to the power to order expulsion but Reg.16.8 directs that each school principal -

" ... shall be responsible for the teaching and discipline of the school and shall, subject to the directions of the School Council, have authority over the other teachers and pupils of the school for such purpose."

34. In my judgment, it is evident that a decision to expel (or suspend) a pupil is an exercise of disciplinary powers. Indeed, as I understood Mr Chow's submissions, this was admitted by him.

35. If the source of the power to expel a student from an ESF school lies in subordinate legislation then, in my view, absent any evidence of the decision-making process having its genesis in a private trust or private contract, it must follow that any decision to exercise that power must constitute the performance of a public function.

36. In advocating his submissions, Mr Chow said that if the decision of a school principal to expel a pupil was amenable to judicial review, it was difficult to see, as a matter of principle, why the supervisory jurisdiction of the courts could not be extended to other day-to-day exercises of disciplinary powers by school teachers. But that ignores the fundamental principle that judicial review is a discretionary remedy. In looking to the exercise of that discretion, the courts are entitled to have regard to such matters as the nature and importance of the decision under review, the effect of any order on the conduct of good administration and whether the granting of a remedy is necessary or desirable in the interests of justice. In my judgment, the courts can be left to exercise the necessary wisdom to distinguish between the drastic decision to expel a pupil, a decision which may permanently blight that pupils' life, and a decision, by way of example, to order a student to do extra homework.

37. During the course of his submissions, Mr Chow made reference to certain English authorities (e.g. R v. Fernhill Manor School, ex parte A [1993] 1 FLR 620 and R v. Muntham House School, ex parte R [2000] ELR 287) in which decisions to expel or remove a pupil were held not to be subject to judicial review. However, as I have read those authorities, they turn on questions - peculiar to the complexities of the English educational system - of whether the relationship between the schools and the pupils was underpinned by statute or, despite some statutory framework of control, was founded on a private contract made between the school and those paying for the education of the pupils. I have not therefore founded those authorities to be of any material assistance.

The issue of procedural fairness

38. In his judgment in Board of Education v. Rice [1911] AC 179, at 182, Lord Loreburn LC made the observation that decision-makers fulfilling a public responsibility "must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything."

39. In the present case, in what was apparently its anxiety to deal rapidly with the problem, thereby looking to the safety of other pupils at Kennedy School, the school and the ESF failed to listen to what either R had to say in his defence or in mitigation or what his parents had to say on his behalf. In the circumstances, in my view, that was plainly a breach of natural justice; to put it another way, it was a failure to act fairly. It was for that reason that, at the meeting held on 30 March 2004, it was conceded that the decision made and communicated to R's parents four days earlier to expel their son should be subject to full review; in effect, that it should be set aside and the matter considered afresh.

40. To ensure that this time R would be entitled to put his version of events, it was agreed that the boy would be given the opportunity to be interviewed. As mentioned earlier, the interview did take place.

41. But R being so young, it was clearly recognised by the school and the ESF that R's parents must also be entitled to make representations and, of course, if those representations were to be of any value, they had to be made and considered before any final decision.

42. That this was the procedure determined upon by the school and the ESF is apparent from the transcript of what was said at the meeting held on 30 March 2004. During the course of meeting, the Chairman of the School Council said the following :

"	What we should suggest is this :
	*	That in the interests of justice and to ensure that we do the right thing we are prepared to review our decision pending a full meeting with both of you again.
	*	For you to please explain to us first hand the history behind all of this - what has happened, how you see this.
	*	To give R the opportunity to be interviewed by school management, to set out, as the other children have, in his own words what has happened.
	*	For us to hold a meeting with our colleague who is a professional in psychology, and
	*	for us then to deliberate carefully, after listening to both of you and to R, for us to review and deliberate, to deliberate all the facts of the matter before arriving at a final decision." [my emphasis]

43. This agreed procedure was underscored by the Chairman of the School Council who went on to say :

" ... the risk assessment is very important because ultimately we have to take responsibility for doing the best we can to ensure the safety and welfare of all the children. And I know, that as a parent, at the moment your perspective is R, we too are concerned about him, hence our willingness to review the decision. I also want to make it very clear that the other child's father has played no part in the decision-making process and has not influenced us one way or the other. But what has come out of the meeting from my perspective and my colleagues, is that we realise that we have not had the opportunity to listen to you both at length, and to your son, to hear it from his perspective, for him to write up his statement an thus understand the background ..." [my emphasis]

The Chairman continued :

" Our decision to review this decision is based upon, frankly, a feeling that we have, having listened to you, that we really must give you the opportunity and R to tell us the whole story and for us to understand the background that led up to this, and for us to make an objective risk assessment." [my emphasis]

44. In summary, the school and the ESF gave R's parents a clear undertaking that, in the interests of fairness, before any final decision was made they would have the opportunity to make representations on behalf of their son. While it may not have been spelt out in block letters, it is apparent on an ordinary reading that it was intended that a further meeting would be called after further information had been obtained and at that meeting R's parents would be able to make their representations. Only thereafter would a final decision be made as to R's future.

45. However, that opportunity to make further representations at a second meeting was not afforded to the parents. It is apparent that when they attended the second meeting on 15 April 2004 the school and the ESF had already made the final decision that R must be expelled. In failing to give the parents the opportunity to be heard, the school and the ESF went against the very procedure which they had set in the recognised interests of fairness. In light of this it is not surprising that the parents saw no purpose in remaining at the meeting and left, their leaving quite patently being an expression of protest.

46. It may well be that no representations or suggestions as to alternative remedies put forward by the parents, however cogently presented, would have persuaded the school or the ESF. Unhappily, however, the parents were not given the opportunity as they had been promised to even attempt to do so. It must therefore remain a pure matter of speculation as to what may or may not have been resolved in the best interests of all the parties if the parents had been allowed to make their representations and if constructive discussion had been allowed to take place.

47. Mr Chow argued that, when considered in the round, both R and his parents were dealt with fairly. Mr Chow emphasised that the rules of fairness are not engraved on tablets of stone, that the concept of fairness is flexible and is not therefore subject to adherence to rigid procedures. I accept this and I accept that academic disciplinary procedures, while they are subject to the rules of fairness, are not to be judged by unduly strict standards. In this regard, see Leung Chak Sang v. Lingnan University [2001] 2 HKC 435, at 446. In the present case, however, without in any way looking to strict standards, I am unable to accept that, looking to all matters in the round, R's parents were dealt with fairly. From the perspective of the parents, the purpose of the first meeting was to convince the school and the ESF to review their decision to expel their son. The purpose of the second meeting, which was to be held once all relevant material was to hand, was to enable them to make substantive representations and suggestions and for those matters to be debated and considered before any final decision was made. That being the case, I do not see how it can be said that the parents have been dealt with fairly even though they were denied the opportunity, perhaps critically important, to make their substantive representations at the second meeting. In my view, while I accept that the school and the ESF were acting at all times in good faith, this failure on their part constitutes a material breach of the rules of natural justice which may have materially prejudiced their son.

48. In all the circumstances, the decision cannot stand and must be struck down.

The issue of rationality

49. In light of my findings on the issue of procedural fairness, I am not required to consider this final complaint. Indeed, having recognised that the decision to expel R was vitiated by unfairness, it is difficult for me to judge the rationality of that decision in a definitive fashion. However, I believe a few observations are required.

50. It is well established that, on an application for judicial review, it is not for a court to consider whether a decision under challenge was 'right' or 'wrong'. A court is not entitled to substitute its discretion for that of the decision-maker. In the present case, it is not for this court to attempt to run the ESF or to exercise disciplinary powers on behalf of school principals. This court may do no more then ensure that, in performing their duties, the ESF and Kennedy School acted in a manner required by law.

51. It is of course well settled that a public body such as the ESF invested with statutory powers must take care not to exceed or abuse its powers. It must therefore act in good faith and must ensure that decisions made by it, which have or may have a material consequence, are reasonable in the sense that they are not perverse or capricious; in short, that they are not decisions which a reasonable decision-maker, taking account of all relevant circumstances, could never make.

52. On behalf of R and his parents, Mr Coleman submitted that the decision to expel R was a gross over-reaction and unwarranted, especially as R was only ten years of age and at an important stage of his schooling. The decision had the effect, he said, of stigmatising R in the eyes of other schools and making it significantly more difficult for him to be accepted at another school.

53. It must be self-evident, I believe, that any decision to expel a young boy or girl from school will have possibly profound ramifications on the student and his or her family. It is a drastic measure, patently a measure of last resort. However, it is a measure which may have to be taken if the circumstances demand. In the present case, the school and the ESF came to a reasoned decision, based on a long history, that, in the interests of all the other pupils at the school and at other ESF schools, R must be expelled. It was not a decision taken on the basis of evidence of one incident only. As I have said, the decision was based on a long and trouble history and was motivated by an incident which, as Mr Chow said, could easily have had tragic consequences.

54. That being the case, in my judgment, absent the successful challenge to the fairness of the procedure adopted by the school and the ESF, the complaint that the decision itself was irrational would, in the light of the history of this matter, have been very difficult to sustain.

Conclusion

55. For the reasons given in the body of this judgment, I am satisfied that the decision made to expel R from Kennedy School and to deny him entrance to any other ESF school must be quashed. An order of certiorari is therefore granted.

56. As to costs, I see no reason why costs should not follow the event and I will make an order nisi to this effect, the order to be made final in 21 days if the matter has not earlier been set down for argument.