TONG WAI TING v. SECRETARY FOR EDUCATION AND ANOTHER

HCAL 73/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 73 OF 2009

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J U D G M E N T

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Introduction

1.  The applicant, suing by his mother and next friend, is an 18-year-old young person with Down’s syndrome.  He suffers from a mild grade of intellectual disability as a result.  He was a student of the HHCKLA Buddhist Po Kwong School (the School) for the past 12 years.  The School is a special school providing education for students who require special educational needs (SEN) due to intellectual disability (ID).  In this judgment, special schools like the School will be referred to as ID schools, and similar terms, such as ID students, should be understood accordingly.

2.  The applicant has completed 12 years of education in the School, including the two-year EYE programme or its equivalent[1] (EYE stands for “Extra Years of Education” introduced in the 2002/2003 school year by the Government).  According to the relevant curriculum for ID students at ID schools in Hong Kong, the applicant has reached the end of his educational path.  However, he wishes to have his study in the School extended for one more year.  He has accordingly made his application to the School, which holds a favourable view on his proposed extension of study.  Having considered the applicant’s past academic performance and records, and in light of his abilities, the School takes the professional view that the applicant “would most likely be able to reach a higher potential” if he is allowed one more year’s study at the School.

3.  But the wish of the applicant is thwarted, or apparently thwarted, by a rule, or a perceived rule, of the Government that unless for special reasons specified by the Government and the approval of the Permanent Secretary for Education is obtained, and unless there are vacancies at the relevant ID school to accommodate the application for an extension of study, an ID student who is already or will be in the coming school year 18 years old must leave school.  The mere wish to reach a higher educational potential by extended study or to repeat a previous year of study with a view to achieving educational improvement is not considered a special reason for an extension of study by the Government.

4.  On the other hand, no similar age restriction is apparently imposed on students studying in mainstream aided secondary schools, ie secondary schools providing education to students with no SEN.

5.  It has been on that basis that the applicant has successfully applied for leave to commence and pursue the present judicial review proceedings against the two respondents, respectively the Secretary for Education and the Permanent Secretary for Education.  The decision under challenge is the decision of the Permanent Secretary for Education concerning the class organisation and staff establishment plan for the School in the school year for 2009/2010 made on or about 29 May 2009.  The decision had the effect of reducing the funding for the total number of students attending the School – the total number of students was calculated on the basis that the applicant would not be allocated a place in the School (on his own right) in the coming school year.

6.  The primary case of the applicant is one of discrimination under the Disability Discrimination Ordinance (Cap 487).  In gist, the applicant complains that he has been discriminated against by the Government in that on the ground of his intellectual disability, the Government treats him less favourably than it treats or would treat a person without a disability, namely a mainstream student seeking an extension of study (effectively a repetition) in a mainstream secondary school.  Such a person would not be subject to the age restriction of 18.  This constitutes a case of direct discrimination under section 6(a) of the Ordinance.

7.  The applicant also argues two alternative grounds.  First, he contends that regardless of any direct discrimination, the Government has in fact misinterpreted and therefore misapplied its own policy.  The relevant age restriction, according to the Government’s own policy, only bites at the age of 20, rather than the age of 18.  For that, the applicant relies on paragraph 12(c) of Appendix I to the Code of Aid for Special Schools.  The current edition of the Code is dated November 1998, but similar provisions in earlier editions can be traced to as early as September 1977.  On the face of it, the Code of Aid for Special Schools applies to all special schools in Hong Kong, without distinction as to whether they are ID schools or non-ID schools catering for non-ID students with SEN (such as schools providing education to those suffering from visual or hearing impairment, but otherwise with no intellectual disability).  Paragraph 12(c) reads:

“Except with the approval of the Permanent Secretary, no pupil shall be allowed to remain in a primary class of a special school after the end of the school year during which he reaches the age of 16 and no pupil shall be allowed to remain in a secondary class of a special school after the end of the school year during which his 20th birthday occurs.”

8.  In other words, the applicant complains that even according to paragraph 12(c), he is entitled to study at the School, a special school covered by the Code of Aid for Special Schools, until he reaches 20.  The Government has simply misinterpreted paragraph 12(c) and misapplied it to only non-ID students studying at non-ID schools who are following the mainstream curriculum and sitting for mainstream public examinations (namely the Hong Kong Certificate of Education Examination, HKCEE).

9.  A side point taken by the applicant, which is subsumed under this first alternative argument set out in the Form 86, is essentially a point of discrimination.  This time the comparison is not between an ID student like the applicant and a mainstream student seeking repetition in a mainstream school.  Comparison is sought to be made between an ID student like the applicant and a non-ID student with SEN studying in a non-ID special school who is sitting for mainstream public examinations.  The argument is straightforward and is premised on the Government’s interpretation of the scope of application of paragraph 12(c) being correct, that is to say, the applicant is treated less favourably than his non-ID counterpart (also with SEN) studying in a non-ID special school, in that he is subject to a less favourable age limit, ie 18 instead of 20.

10.  The second alternative argument run by the applicant, according to his Form 86, is one of substantive legitimate expectation.  In a nutshell, the contention is that following the ratification of the Convention on the Rights of Persons with Disabilities by the People’s Republic of China with no relevant reservations and therefore its application to Hong Kong since 1 August 2008, and by reason of some public announcement made by the Labour and Welfare Bureau of the Government on 29 August 2008 relating to the Government’s unreserved commitment to the obligations incurred under the Convention, ID students like the applicant have a substantive legitimate expectation that the Government will comply with its obligations under the Convention, particularly article 24 thereof which recognises the right of persons with disabilities to education, without the imposition of the age limit in question.  Article 24 of the Convention reads:

“1.     States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:

         (a)     The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;

         (b)     The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;

         (c)     Enabling persons with disabilities to participate effectively in a free society.

2.      In realizing this right, States Parties shall ensure that:

         (a)     Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;

         (b)     Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;

         (c)     Reasonable accommodation of the individual's requirements is provided;

         (d)     Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;

         (e)     Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.

3.             ….

4.             ….

5.      States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.”

11.  Besides, article 13 of the International Covenant on Economic, Social and Cultural Rights is also mentioned in the Form 86 as part of the relevant legal background.

12.  However, in the written submission lodged by Mr Martin Lee SC (Mr Hectar Pun and Mr Dennis Kwok with him) on behalf of the applicant for the substantive hearing and at the hearing itself, counsel has sought to run a different legitimate expectation argument.  Instead of running the substantive legitimate expectation contention set out in the Form 86, counsel has sought to run a procedural legitimate expectation argument.  In short, counsel argues that all relevant stakeholders in the field of special education for ID students have a legitimate expectation to be consulted by the Government on its relevant policy and practice.  Specifically, in relation to an “internal review” conducted by the Government in-house regarding the compatibility of its existing policy and practice with the obligations under the Convention (which found no deviation), counsel’s contention is that the review has been conducted in breach of the procedural legitimate expectation to be consulted.  For reasons that I will presently explain, this new argument based on procedural legitimate expectation has not been pursued at the substantive hearing with any enthusiasm.

13.  At the substantive hearing, the Court has also heard submissions from the two interested parties, namely the Equal Opportunities Commission and the Parents and Teachers Association of the School.

Special schools system

14.  In Hong Kong, the special schools system is planned, organised and implemented, in terms of admission, academic structure, curriculum, class structure and size, teacher and other staff resources and requirements, teaching method, assessment of academic attainment, promotion, repetition, school leaving arrangements, post-school arrangements and pathways and so forth, in a different manner from the mainstream schools system, in order to provide a system that would best address the SEN of students in special schools, including ID students in ID schools.

15.  Needless to say, the unit cost of special schools places is much higher than that of mainstream schools.  For instance, the standard unit cost per school place for the year 2008/2009 for a student suffering from mild intellectual disability (like the applicant) is $100,000, whereas that for a student in a mainstream aided secondary school is only $40,500.

16.  The aim of special education in Hong Kong is to provide children having special needs with education to help them develop their potential to the full, achieve as much independence as they are capable of, and become well-adjusted individuals in the community.  Before 2002/2003, ID students were provided with a six-year primary education and a four-year junior secondary education.  In the 2002/2003 school year, the Government launched the two-year EYE programme specifically designed for ID students aged between 16 years and 17 years 11 months, with a view to facilitating the smooth transition of the students from school to work/post-school institutions/adult life.  Participation in the EYE programme is voluntary.  But for those who join, they are able to enjoy 12 years of free education altogether.  Like students in the mainstream schools system, generally speaking, ID students are admitted at the age of 6.  Thus 12 years of free education would mean that an ID student would complete his education in an ID school at the age of 18.  Before I come to the significance of this age, it is first necessary to understand the curriculum and the method of assessment in ID schools.

17.  In ID schools, the curriculum framework for students is specifically tailor-made and adapted from the mainstream curriculum with regard to the content, pace of learning and expected learning outcomes.  That is to say, ID schools mainly follow their school-based primary and junior secondary curriculums adapted from the mainstream curriculums based on expert advices.  Each adapted curriculum contains learning goals that are derived from those at the lower end of the mainstream curriculum framework, wherever appropriate.  The content and the skills to be learnt in terms of depth and breadth are adjusted to the level within the capabilities of students with ID.

18.  Importantly, the class level where an ID student is attending primarily refers to his age, but not his academic attainment or level of curriculum achieved when compared to that in mainstream schools.  Apart from age, a student’s academic, physiological and emotional development, as well as the projected impact on the student’s interaction with peers, are also taken into account in determining a student’s class level. 

19.  In ID schools, due to the great student diversity and special needs, students will not be assessed in the same way as mainstream schools students sitting for public examinations at the end of their studies.  ID schools have their school-based system, such as student learning profile and individualised education programme (IEP) to record the achievement of individual students.  To cater for individual learning needs of students with ID, ID schools will design IEPs for all their students, based on assessment given by teachers and all those working with these students.  An IEP seeks to ensure that a student receives education specifically tailored to meet his individual learning needs.  It is a programme whereby the student can work on appropriate task over a period of time at his own pace under motivating conditions.  Through regular monitoring and review by teachers and all those working with the students, an IEP seeks to facilitate the understanding of a student’s progress and ensure that the student can reach his potential within the given years of education under the academic structure of ID schools.

20.  A combination of tools will be used for different subjects and different learning zones to assess the progress and achievement of individual students.  Importantly, schools will review and revise the IEP regularly to reflect the actual learning situation of each student.

21.  Due to their different capabilities, limitations and different IEPs, students with ID may start at different attainment levels in a subject, and have their starting point either lower or higher than those of their classmates.  They could start at different learning stages and be taught in different ability groups in different subjects even within the same class.  Students progress through different zones of learning at different paces.  Some could stay in one particular zone of learning without progressing to the next zone after years.  Typically, different students have unequal development in different areas/strands of the subject.

22.  With regard to level of attainment, it has been observed, according to the evidence, that the best achievement of a student with mild ID having completed secondary education in an ID school could attain is equivalent to Primary 6 or Secondary 1 or 2 of a mainstream school.  Some students may not be able to accomplish the learning targets as planned.

23.  The fact that the learning objectives in an IEP will be regularly reviewed and revised in light of each student’s ability and progress, in addition to there being no standardised end of term examination for all students in the same grade level in an ID school, lead to one very important result.  In an ID school, according to the evidence from the Government, “there is no question of a student being required to repeat due to failure to meet prescribed standards for that grade level” (para 105 of the affirmation of Chum Chui Chi Hera filed in these proceedings on 20 July 2009).  Thus, according to the evidence, there is no quota on repeaters.  Individual ID schools will make professional judgments on measures to support the students, mainly through revising the specific learning targets with adjustment of learning activities, having regard to the ability and development of the students.  Given the revision, it is considered that “there is no need for students to repeat for another school year so as to attain certain academic standard” (para 106, ibid).  However, the Government leaves it to individual ID schools to determine professionally whether a student below the age of 18 should repeat for justifiable reasons.

24.  Of great significance in the present case is the emergence of clear evidence from the materials filed that the age restriction of 18 in ID schools does not quite exist as an absolute rule on its own barring schooling beyond 18.  As mentioned, children with ID are normally admitted to special schools at the age of 6, which is the normal school age for all children in Hong Kong, to start their primary education in ID schools.  After ten years of free education, they may leave school at the age of 16.  If they take the two-year EYE programme which is voluntary, they will be 18 by the time they finish their 12 years’ free education.

25.  That is where and how the age of 18 comes into the picture.  What has happened, according to the uncontradicted evidence placed before the Court, is simply that the Government has made use of the age of 18 as a convenient point of reference and review in relation to its provision of free education to ID students.  For the purposes of planning (particularly for budgetary requirement), the Government needs to know the number of students each school (whether mainstream or special) is expecting to enrol in the coming school year at all levels, and that includes the need to know the number of students in the current year who are expected to leave school at the end of the school year, as well as the number of those who are expected to stay (including those who propose to apply for an extension of study).  For mainstream schools, there is an objective event by which students are expected to leave school, namely the sitting of the HKCEE, and the planning for the coming year can be made based, amongst other matters, on the number of students taking the public examinations in the current year.  For ID students, however, since they do not take the public examinations, the same objective event does not apply.  Therefore, according to the uncontroverted evidence before the Court, the Government chooses, and has been using, another objective reference point by which students are expected to leave school, for the purposes of planning.  That objective reference point is the age of 18, that being the age when normally ID students, having started at 6, are expected to have completed their 12 years of education, including the two-year EYE programme, and to leave school.

26.  Students over the age of 18 would therefore not be counted by the Government towards the demand in determining the class organisation of an ID school for the next school year.  However, an ID student who will be over 18 at the start of the coming school year, can apply for permission from the Permanent Secretary to stay on at an ID school if there is a good reason for him to do so.  As a matter of policy or practice, such a student will invariably be allowed to stay on if he has been absent from school for half a school year or more due to health reasons, or because he has represented Hong Kong in international sports tournaments (the so-called “prolonged absence ground”), or if he has other (unspecified) valid reasons.  For those who can invoke the prolonged absence ground, extra funding will be provided to the school to accommodate them in the coming school year.

27.  For those who cannot invoke the prolonged absence ground, the Government’s policy or practice is to allow ID schools to accommodate the students by making use of the vacancies available under the approved class organisation for the following school year provided that the admission of school age children is not affected.  If there are sufficient vacancies to accommodate all, everyone will be allowed to stay on, regardless of their reasons for application.  However, where, as here, there are insufficient vacancies, preference is given to those who have had less than 12 years of education and have not done the EYE programme at all or have only done it for one year.  As for the others, including students like the applicant who have enjoyed 12 years of free education including the two-year EYE programme, they would have to compete amongst themselves for the remaining vacancies.  The ID school will be asked to supply further information about these students and make recommendations to the Government.  The Education Bureau will then make the ultimate selection where demand exceeds supply in terms of the remaining vacancies.

28.  For the sake of completeness, I should point out that leaving school is not the end of the road for an ID school graduate.  Special schools formulate individual plans of post-school placement for all students approaching the age of leaving school.  Students who are expected to leave school may be referred for placement in the Vocational Training Council’s skill centres, the sheltered workshops of the Social Welfare Department or the rehabilitation services provided by other organisations.  In practice, students of mild ID and moderate ID schools will be referred to various training centres, in particular the skill centres of the Vocational Training Council and the integrated vocational rehabilitation services centres, for job training.  Others who do not meet the capability for job training, depending on the needs of the students, may be referred to sheltered workshops, day activities centres or care and attention homes.  Under normal circumstances, the training centres under the Vocational Training Council can provide immediate admission for all ID school graduates who fulfil the entrance requirements (subject to their parents’ consent).

29.  Pausing here, it is therefore not entirely correct to say that for ID students in ID schools, there is an age restriction set at the age of 18.  There is no such absolute rule.  On the other hand, it is also wrong to say that there is no rule whatsoever which is age dependent.  From the description of the undisputed facts given above, the fact that an ID student has reached or will reach the age of 18 may, depending on circumstances, have an effect on his continued education at the school.  Thus late starters are affected by the rule given how things are supposed to work.  Those who have not enjoyed 12 years of free education (including the two-year EYE programme fully or at all) by the age of 18 may also be affected by the rule.  Although they will be given preferential treatment in terms of selection for filling up the school vacancies in the coming school year, there is no guarantee that there will be vacancies or sufficient vacancies to absorb all these students.  In short, apart from those who can invoke the prolonged absence ground, there is simply no guarantee of places.  So to that limited extent, to these students, there is indeed an age restriction of 18 in place.  But it is not an absolute rule, and whether they can continue their study in the coming school year depends on the number of remaining vacancies and how keen the competition for these vacancies is for that particular year.

30.  For those who have already enjoyed 12 years of free education (including the two-year EYE programme), likewise, they are affected by this so-called age restriction, in the sense that whether they are allowed to stay on for one more year is dependent upon the number of remaining vacancies available and the extent of competition for places in the coming school year.  Moreover, according to the evidence, they rank lower in terms of selection preference when places are insufficient to accommodate all, when compared with those who have not yet enjoyed 12 years of free education or the EYE programme.

31.  All this is important when one comes to analyse the case of direct discrimination maintained by the applicant in the present case.

Mainstream schools system

32.  It is now necessary to give a very brief description of the mainstream schools system.  Leaving aside late starters, primary and secondary education in mainstream schools commence when a child has attained 6 and 12 years of age respectively.  Such education is completed before the student attains the age of 17 (for a Secondary 5 school leaver) or 19 (for a Secondary 7 school leaver).  The objective of the mainstream schools system is to ensure that young people in Hong Kong receive an all-rounded quality education to prepare them for life and work, as well as to provide them with an attitude towards lifelong learning.  The school education service aims at developing the potential of every individual student, equipping the student with the knowledge, skills and attitudes for further studies and personal growth.  All children having the right of abode in Hong Kong who have attained the age of 6 are, on application, allocated Primary 1 places in Government and aided primary schools through the Primary 1 admission system.  On completion of primary education, pupils are, on application, allocatedsubsidised Secondary 1 places through the secondary school places allocation (SSPA) system.

33.  Since 1978, nine years of free and universal (as well as compulsory) basic education, comprising six years of primary and three years of junior secondary education, have been available to all children.  Before the 2008/2009 school year, all mainstream students enjoyed three years of compulsory education up to Secondary 3.  Adequate free Secondary 4 places or vocational training was then provided for all Secondary 3 students who had the ability and the wish to continue their study.  As from the 2008/2009 school year, the Government also provides free senior secondary education (ie Secondary 4 and 5) for all students in public-sector schools and full subvention for fulltime courses offered by the Vocational Training Council for Secondary 3 school leavers.  As for post-Secondary 5 level, only one-third of those who entered Secondary 4 two years previously are offered places for a two-year sixth form (pay) education.  In other words, the majority of mainstream students enjoy 11 years of primary and secondary education (six years primary and five years secondary).  All this is set to change with the implementation of the new senior secondary (NSS) academic structure from the 2009/2010 school year which I will come to. 

34.  Students studying in mainstream schools are assessed on an annual basis.  For primary schools, a balance of formative and summative assessment is emphasised.  Different modes of assessment are adopted whenever appropriate for a more comprehensive understanding of student learning in various aspects.  Students’ internal examination results at Primary 5 and Primary 6 are used for allocation of Secondary 1 places under the SSPA system.  Further, the territory-wide system assessment (TSA) is administered at Primary 3 and Primary 6 to assess the standards of students in Chinese language, English language and Mathematics.

35.  For secondary schools, the existing senior secondary curriculum leads to the HKCEE upon completion of Secondary 5 and to the Hong Kong Advanced Level Examinations upon completion of Secondary 7.  Further, the TSA is administered at Secondary 3 to provide feedback to schools about their standards in the same three subjects. 

36.  Promotion and repetition in mainstream schools are governed by the relevant Codes of Aid.  According to the evidence, the following principles are common to primary and secondary schools:

(1)     Once admitted, pupils should be allowed to complete the course.

(2)     Pupils should normally be promoted at the end of the academic year and retention in a particular class in order to allow a pupil to repeat a whole year’s work should be the exception rather than the rule.

(3)     Repetition is not a desirable course of action.  It is more appropriate for schools to adopt remedial measures to assist children with weak academic performance to cater for individual needs.

(4)     Schools are discouraged from allowing students to repeat for the following reasons:

(a)    Students may become over-aged.

(b)   They may take up school places which should be given to others.

(c)   Without appropriate remedial measures and follow-up work, repetition may only reduce the students’ interest in learning.

(5)     It is especially important that repetition should not be associated with failure to obtain a fixed mark in any test or examination and it should not be made automatic in such cases.

(6)     Exceptions to the general rule of promotion from one class to another may be allowed at the discretion of school-heads where it is clear that it is in the best interests of a student that he or she should be allowed to repeat an academic year for educational reasons.

37.  Importantly, according to the affirmation of Ms Hera Chum filed on behalf of the Government,

“46.   The respective maximum number of repeaters in an aided primary and secondary schools should not exceed 3% and 5% of the total enrolment of the school. Further,

         (1)     In the case of primary schools,

(a)   students should only be allowed to repeat once in the whole primary course;

(b)   no pupil shall be allowed to take more than 7 years to complete the six-year course;

(c)   students are not allowed to repeat Primary 6;

(d)   all Primary 6 students should be presented for allocation of secondary school places through the SSPA System.

……

         (2)     In the case of secondary schools,

(a)   the number of Secondary 1 repeaters should not exceed 2 repeater places per class of the total number of the approved Secondary 1 classes for the preceding school year;

(b)   whether or not a student is required to repeat or not should be decided by the principal in accordance with the principles of education and the student's individual situation. Under normal circumstances, schools should not ask a lot of students to repeat at a certain level.

The 5% cap for secondary schools was recommended by the Education Commission in its Report 1 (1984) … Schools are also reminded through annual circular letters on the SSPA System that the number of Secondary 1 repeaters should not exceed 2 repeaters places per class of the total number of the approved Secondary 1 for the preceding school year. … To this effect, EDB allocates to schools 2 pupils less per class under the SSPA mechanism. However, it is up to the school to decide whether to use these school places for repeaters or admit new students or simply to leave them vacant.

47.    ….

48.    There is a slight difference between primary and secondary schools in the accommodation of repeaters at Primary 1 and Secondary 1.  All along, primary schools have been allocated students up to the standard class sizes. Schools may accommodate the repeaters, if any, on top of the number of students allocated. With the implementation of SCT [Small Class Teaching] as from 2009/2010, an enrolment cap at 10% above the standard Primary 1 class size is set, which means that the repeaters, if any, will have to be accommodated within the 10% under the enrolment cap (i.e. 2 additional places for schools adopting SCT and 3 additional places for other schools). As for secondary schools, in the past, they could opt for keeping 2 places within the prescribed class size for repeaters/admission of students on their own or forfeit these places for central allocation under the SSPA System. This practice was maintained up to 2005/2006.  After the 2005/2006 school year, all schools are allocated 2 places less than the standard class size. With the implementation of an enrolment cap from the 2007/2008 school year, repeaters, if any, are accommodated within the standard class size. As the 3% and 5% repeater quotas have been factored in for primary schools and secondary schools respectively in EDB’s approval on class organization of the next school year, schools will not be approved of any additional classes due to their own admission of students, including accommodation of repeaters, exceeding the capacity of the approved classes.”

38.  One phenomenon that the Education Bureau has observed is that the 5% repeater quota for aided secondary schools tends not to be spread equally amongst all grade levels, in that schools may have reserved a greater proportion of the quota for Secondary 5 students who wish to re-sit the HKCEE.  At Secondary 5 level, students who wish to repeat may apply to their own school or other schools direct.  The schools may decide whether or not to admit these students, having regard to the availability of vacancies and performance of the students.

39.  Pausing here, it is important to observe that whilst it is true to say that in relation to mainstream students, there is no equivalent age restriction as such (in the sense explained above), a mainstream student is not, as of right, entitled to repeat his year of study whether midcourse or at the end of his secondary school education.  He has to make application, approval of which is discretionary, and he has to compete for limited vacancies in many cases.

New NSS structure

40.  I will now briefly mention the new NSS structure which is to be implemented on a one-grade-per-year basis starting from the coming school year.  With effect from the coming school year, the NSS academic structure will be implemented in Secondary 4 and all students will receive a “3 + 3” secondary education so that all students benefit from six years of secondary education – instead of the previous five years free secondary education (plus, for those who manage to find places, two years of sixth form pay education).  Bachelor degree studies in local universities will correspondingly be adjusted from three to four years.

41.  Schools will not operate classes at all three senior secondary levels under the NSS academic structure right from the beginning.  They will start to operate Senior Secondary 1 (SS1) classes first, and progress up to SS3 year by year.  The first SS2 classes will commence in the year 2010/2011, and the first SS3 classes in the following school year.  The NSS curriculum is a new curriculum, and aims at providing students with diversified subject choices and different learning experiences to foster their whole person development.  It is not simply an attempt to add one more year to the pre-existing secondary school education.

42.  Of significance is that the new NSS system will be extended to special schools, including ID schools, subject to appropriate adjustments.  As before, the new curriculum for students with ID, known as the NSS (ID) curriculum, will also be specifically tailor-made and adapted from the mainstream NSS curriculum with regard to the content, pace of learning and expected learning outcomes.  The NSS(ID) curriculum contains learning goals that are derived from those at the lower end of the mainstream NSS curriculum framework, wherever appropriate.  The content and the skills to be learnt in terms of depth and breadth are adjusted to the level within the capabilities of ID students.  The class level where an ID student is attending will, as before, primarily refer to his age but not his academic attainment or level of curriculum achieved when compared to that in mainstream schools.  The new NSS(ID) curriculum will gradually replace the EYE programme, which will be completely phased out by the end of the 2010/2011 school year.  After that school year, the NSS (ID) curriculum will apply to all senior levels in ID schools.  In terms of depth and breadth, the six-year junior and senior curriculums for ID schools will combine to provide a wider range of educational experiences through core and elective subjects and other learning experiences than the current four-year junior secondary and two-year EYE curriculums.

43.  Despite these significant changes in the content of the new curriculum, what is significant for our present purposes is that so far as the so-called age restriction as well as the policy or practice of the Government relating to promotion, repetition and extension of study in ID schools are concerned, they will remain unchanged after the phase implementation of the new NSS(ID) curriculum.  After all, the number of years of free education to be provided to ID students will remain at 12.

44.  Likewise, despite the substantive changes in terms of educational content and school structure, the Government’s policy and practice regarding promotion and repetition in mainstream aided secondary schools will remain unchanged after the gradual implementation of the new NSS curriculum, save for some fine-tuning that does not concern us.

Applicant’s schooling history

45.  The applicant was born on 8 October 1990.  He was offered a Primary 1 place in a mild ID school in the 1996/1997 school year.  However, his parents declined the offer and the applicant continued to study in a pre-school centre until summer 1997.  In the school year 1997/1998, he was admitted to the School as a Primary 2 (mild ID class) student.  At the time of his admission on 1 September 1997, he was almost 7 years old.  Notwithstanding his delayed admission, he enjoyed five years of primary and five years of junior secondary education (with one year’s repetition) which took him to July 2007.  According to the Government, he was admitted to the EYE programme of the School on 3 September 2007.  Upon completion of the EYE programme in July 2009, the applicant has received a total of 12 years of education in the School and has completed the education programme available to students in ID schools under the existing schooling system.

46.  As a matter of fact, though, there is some dispute as to whether the last two years that the applicant had in the School were really the EYE programme or the first two years of the new NSS (ID) programme, which was trial run in the School as a “Seed Project”.  It is common ground that according to the Government’s intention, the new NSS (ID) structure is to replace and phase out the EYE programme.  At the substantive hearing, no point has been taken that on the facts of the present case, the applicant may not have taken the EYE programme, but has instead participated in the trial NSS (ID) curriculum under the Seed Project for two years in substitution.  For all practical purposes, counsel have all proceeded on the basis that the applicant has had the full benefit of the EYE programme or its equivalent, in advancing their arguments for the parties.  The Court proposes to proceed on the same basis in this judgment.

Scope of present proceedings is defined

47.  I now turn to the issues raised in these proceedings.  Before I deal with those issues, it is important to observe this.  The present proceedings are not a class action.  The applicant does not take out these proceedings in any representative capacity.  The application for judicial review is case specific in the sense that it is limited to the issues raised by the applicant in his Form 86, based on which the Court has given leave to apply for judicial review.  It is also restricted to the facts peculiar to the applicant’s own case.  To the extent that some other ID students stand in the same or an indistinguishably similar position as the applicant, the Court’s decision will no doubt affect them as well.  However, beyond that, the Court cannot and has no jurisdiction to go in these proceedings.  For obvious reasons, the Equal Opportunities Commission and the Parents and Teachers Association of the School have participated in these proceedings as interested parties and made valuable submissions to the Court.  Many of these submissions go to general matters relating to education of ID students (as well as non-ID students with SEN) in Hong Kong, possible areas of discrimination against them and the Government’s overall responsibility under the law (including the Convention).  However, the facts and issues that the Court can and should deal with are defined by the Form 86.  Apart from that, the Court has no independent jurisdiction or mandate to perform any “general” review of the education of ID or non-ID students with SEN in Hong Kong in terms of possible discrimination or other public law grounds.

The “three missing years” argument

48.  This leads me to a contention raised by Mr Martin Lee SC on behalf of the applicant at the substantive hearing.  The contention is superficially straightforward.  As outlined above, free education for ID students used to be for 10 years, namely six years of primary education and four years of secondary education.  That would bring the ID students to a level of Secondary 3 (understood in the sense of the ID curriculum, rather than the mainstream schools curriculum).  Two extra years were then added starting from the school year 2002/2003, by way of the EYE programme.  Therefore altogether, ID students have been enjoying 12 years’ free education.  The EYE programme is indisputably referable to the disability suffered by ID students.  In the meantime, mainstream students used to get nine years’ free education, that is to say up to Secondary 3 (according to mainstream schools curriculum).  Counsel’s contention therefore starts from this basic premise: 12 years of free education for ID students put them on the same footing as mainstream students who only got nine years.  Counsel has no quarrel with this equation and makes no complaint of discrimination.  Rather, counsel uses it as the basis for saying where the equilibrium should lie.

49.  But importantly, counsel goes on to argue that that fine balance was upset when the Government first changed the number of years of free education for mainstream students in the last school year from 9 to 11 (by including two extra years to cover Secondary 4 and 5), thereby changing the ratio from the original 12:9 to 12:11.  What is more, under the new NSS structure, which applies to both mainstream schools and ID schools, both mainstream students and ID students will get 12 years’ free education.  Thus the ratio between the two groups of students will become one to one.

50.  Mr Lee complains that that plainly is discriminatory.  ID students should get more years of free education than mainstream students who are now getting 12 years, to account for the fact that they suffer from SEN and require more time to cope with their education.  In the past, the right balance was struck (at 12:9).  That balance was disturbed when the Government decided to increase the number of years of free education for mainstream students without any corresponding increase for ID students to cater for their disability and resulting SEN.  Mr Lee does not complain about the increase in length of free education for mainstream students.  His complaint lies in the failure on the part of the Government to increase the number of years of free education for ID students.

51.  In terms of simple arithmetic, ID students are now owed, as it were, at least three years’ free education, when compared with before in the light of the new treatment that mainstream students are now getting and will get.  This has been conveniently referred to as the “three missing years” argument.  In relation to the three missing years, Mr Lee further makes the side point that the two-year EYE programme will be phased out and replaced by the new senior secondary classes in ID schools.  Yet counsel queries how academic studies could replace practical training that the EYE programme is designed to provide in order to meet the special needs of ID students in their transition from school life to work/post-school life.

52.  The three missing years argument has superficial attraction.  However, in my firm view, it is not a contention that the applicant is entitled to run in these proceedings.  First and very significantly, this is not an argument raised in the Form 86 (and the supporting evidence) at all.  It is an argument raised only by counsel at the substantive hearing, and it goes well outside the scope of challenge raised in the Form 86, based on which leave was originally granted.  The challenge raised in the Form 86 goes to the three issues I have identified at the outset of this judgment, namely, direct discrimination by reason of the supposed age restriction (of 18); misinterpretation and misapplication of paragraph 12(c) of Annex I in the relevant Code of Aid; and substantive legitimate expectation based on the Convention and the Government’s announcement.  The three issues have been raised in the Form 86 to support onechallenge, namely, the challenge against the decision of the Permanent Secretary for Education concerning the class organisation and staff establishment plan for the School in the coming school year, which reduced the funding for the total number of students attending the school, thereby denying the applicant any (automatic) repetition of his last year of free education.

53.  Quite plainly, the three missing years argument goes way beyond the above challenge.  To illustrate my point, one needs only point out the possible implications of the argument if it is allowed to be run in these proceedings and is eventually upheld: it will not only mean that the applicant can repeat his last year of study or, put another way, have one year of extension of study in the School; it will actually mean that the Government is obliged to provide for all ID students (including the applicant) a total of 15 years’ free education or even more.  In other words, one will not be talking about granting an extension of study of one year to the applicant; rather one will be speaking in terms of providing another three years of free education or more to the applicant and all other ID students in Hong Kong.

54.  My point can be illustrated by another example.  Under the three missing years argument, one element that will be missing under the new arrangement is the EYE programme to be phased out.  The three missing years to be added back would presumably comprise, amongst other things, the two-year EYE programme.  That, however, does not sit very well with the actual facts and circumstances of the applicant’s case.  For the plain fact is that the applicant has had the benefit of two years of NSS (ID) curriculum (run on a trial basis) at the School in substitution of the EYE programme and it is not his complaint in the Form 86 that he has not attended the EYE programme or its equivalent. 

55.  Yet another example to illustrate my point is this.  There is simply a mismatch between this three missing years argument and the case of the applicant in terms of timing.  The new NSS in mainstream schools will only be implemented in the coming school year gradually.  So the ratio of 1:1 (or 12:12) will only come into being, strictly speaking, in the coming school year.

56.  Any complaint about the three missing years can therefore only be made by students who will still be studying in ID schools in the coming year, because when compared with their counterparts in mainstream schools, they will have (according to this argument) three years less than they should be given in order to cater for their SEN by reason of their disability.  This argument is not available to students who have already completed their 12 years of free education before this new ratio comes into being, like the applicant who has completed his 12 years’ free education in this school year.  In order to run the three missing years argument, the applicant would have to rely on the increase by two years of free education for mainstream students implemented in the school year just ended (2008/2009).  By that increase, the original ratio was changed from 12:9 to 12:11.  The argument to be relied on would not be the three missing years argument, but rather a “two missing years” argument.

57.  Needless to say, the two missing years argument, like the three missing years argument, has never been relied on in the Form 86.  But worse still, even at the substantive hearing, counsel never relied on this refined two missing years argument. 

58.  Of course, if this application for judicial review had involved a general review of the whole scene of education of ID students in Hong Kong, whether one was dealing with a two missing years argument or a three missing years one might not really have mattered.  But this is not such a case.  As I have said, the Court’s jurisdiction in these proceedings is defined by the facts and issues raised in the Form 86 to challenge the specified decision.  For one, if one really wishes to raise the two missing years argument now, the question of delay will immediately come into play, because the extra two years for mainstream students were decided upon in 2008 (or even earlier) and implemented in the school year 2008/2009, and any application to challenge that decision now will be substantially out of time. 

59.  Secondly and even more importantly, lest it be thought that the Court is being technical here, the failure to state the necessary facts and circumstances to run the three missing years argument (or the two missing years argument) and to set out the argument itself in the Form 86 has a profound effect on the type, quality and contents of evidence that the Government has filed in opposition to the application. 

60.  As I have come to the firm view that these judicial proceedings should not deal with the three missing years (or two missing years) argument, I would refrain from commenting on the merits of the argument.  All I need and should say is that the argument is premised on a number of assumptions regarding the 12 years’ free education that ID students have been receiving in terms of its quality, content and sufficiency.  No meaningful comparison can be made with the 9 years’, 11 years’ or 12 years’ free education that mainstream students were, are or will be getting unless those matters are carefully looked at.  Likewise, similar matters in relation to mainstream education will have to be investigated into in order to make any meaningful comparison. 

61.  In other words, a lot of facts and evidence will be required in order to compare the two systems, assuming that they are comparable at all.  And before any meaningful comparison can be made, one simply cannot conclude whether there are any missing years or missing elements in one system or another, or whether one gets more favourable treatment under one system than under another.

62.  There simply is no such evidence before the Court, particularly, no such evidence from the Government, which is not to blame for what has been and not been included in the Form 86.

63.  The Court certainly retains a discretion to allow new points to be run at the substantive hearing of an application for judicial review.  However, it does not mean that new points can be allowed to be run if the necessary factual evidence is missing or cannot be supplied without a substantial adjournment.  In the circumstances of the present case, particularly since we are now in the post-civil justice reform era, it is plainly not a right case for adjourning the substantive hearing in order to allow further evidence to be filed for the running and defence of the three missing years argument.

64.  To be fair, the applicant has through counsel made no application to amend his Form 86 or for any directions for the filing of further evidence.  There is, therefore, no question of the Court allowing this new point to be run in these judicial review proceedings. 

65.  I therefore do not take into account this argument when deciding the present application for judicial review.  In other words, the three missing years argument (or other similar arguments) are therefore left open in these proceedings.  As the Parents and Teachers Association of the School, which is acting in person, has also raised similar arguments in its oral submission before the Court, I wish to reiterate that the issues that the Court is entitled to decide in these proceedings are defined by the Form 86 filed by the applicant.  Whilst the Court was prepared to hear the parties, including interested parties, on related matters, so long as it was done within bounds, it did not change the issues that the Court has to decide in these proceedings.  It must be remembered that unlike other forum, where issues (social, political or otherwise) may be freely ventilated and debated, matters that can be canvassed and require the decision of the Court are strictly defined by court documents required to be filed by the parties, the function of which is precisely to define and tie the parties to the issues before the Court.

66.  Very understandably, Ms Lisa Wong SC (Mr Stewart Wong with her) has protested strongly at the substantive hearing about the raising of the three missing years argument by Mr Lee on the ground not only of pleading but also of lack of evidence.  I am with her.

67.  I now move on to deal with the issues that have been raised in the Form 86. 

Direct discrimination under the age restriction

68.  First, the supposed age restriction imposed on ID students but not on mainstream students.  As explained, there has been some misconception regarding the age restriction.  The age restriction of 18, as explained, does not mean a simple rule of no schooling for ID students after reaching the age of 18.  The age of 18 is significant only in that it triggers a review of the education that the ID student has received up to that point.  It will not affect students who have not received 12 years of free education due to the prolonged absence ground.  At the other extreme, those who have already received 12 years of education (including the two-year EYE programme) are required to leave, not really because they have reached the age of 18 as such, but rather because they have reached the end of the road for free education.  The age of 18 only comes into the picture because in the normal case, an ID student, like all other students in Hong Kong, is supposed to start education at the age of 6, and 6 plus 12 is 18.

69.  However, as I have also observed, the age restriction rule peculiar to ID schools is not totally without significance and adverse effects on ID students.  As explained, late starters, and those who have not received 12 years’ free education or undergone the two-year EYE programme completely (or at all) but cannot invoke the prolonged absence ground, are indeed adversely affected, at least potentially, by the age restriction.  In short, whether they can continue their study in order to complete their 12 years’ free education (including the two-year EYE programme) is dependent on the availability of vacancies, although they do rank in priority over those who have already done so but who still want an extension of study (like the applicant). 

70.  That notwithstanding, in the final analysis, what should be focused on is not whether the age restriction has any actual or potential adverse effects on ID students (it does).  The age restriction itself is not the ultimate issue; whether an ID student in the position of the applicant is unfavourably treated when compared with a suitable comparator by reason of the former’s disability, is.  In other words, one must not lose sight of the fact that this application for judicial review is based on direct discrimination (so far as the present ground is concerned).  It is not a challenge against the age restriction itself on any other public law grounds.

71.  Section 6(a) of the Disability Discrimination Ordinance, concerning direct discrimination, is relied on in the present case.  It reads:

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

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

72.  The applicant has the burden of proving direct discrimination.  For that purpose, he has to compare the treatment that he receives with an actual or hypothetical comparator, and establish that the treatment he receives is less favourable under the comparison.  Secondly, he has to prove that such less favourable treatment is wholly or partially due to his disability.  M v Secretary for Justice [2009] 2 HKLRD 298.  It is common ground that the disability suffered by the applicant is a disability within the meaning of the Ordinance.  It is also common ground that if there is any less favourable treatment under a proper comparison, that less favourable treatment is wholly or partially due to the applicant’s disability.  In other words, what dividesthe parties is whether the applicant is treated less favourably. 

73.  As I explained, the age restriction of 18 in ID schools is not the ultimate issue.  It is the effect of that age restriction on the applicant’s wish to have an extension of study for one more year in the School, and how that compares with the position of an appropriate comparator in a comparable situation in a mainstream school, that is the ultimate issue.

74.  It is here that the submission made on behalf of the applicant breaks down.  Rather than looking further into the effect of the age restriction under attack on the applicant and then comparing it with the position of the comparator, his submission stops at the age restriction.  The argument becomes a simplistic one: because such an age restriction is only found in ID schools, therefore the applicant has been treated less favourably.

75.  What is the effect of the age restriction on the applicant’s wish to study for one more year?  It is now plain from the evidence that the age restriction does not absolutely bar the applicant from having an extension.  As explained, the Government’s actual practice is to allow all ID students who apply for an extension of study to study for one more year if there are sufficient vacancies to accommodate their applications, regardless of whether, and this is important for the applicant’s case, the student has already received 12 years’ free education (including the EYE programme).  This has been clearly borne out by the evidence which is uncontradicted.  I have no reason not to accept the evidence proffered by the Government.

76.  This is an important fact which must be grasped firmly in conducting the required comparison.  This is particularly so when there have been very confusing and even conflicting statements issued by the Government before tothe effect a student who has already got 12 years of free education (including the EYE programme in full) will not be considered for an extension of study based on the mere wish to further his educational potential.  Thus in the Education Bureau’s written response to the Legislative Council Panel on Education on 8 June 2009, one finds this statement:

“As regards applications for extension of stay on the grounds of failure to achieve learning outcomes, we have to point out that ID schools set the learning objectives and Individualized Education Programme (IEP) for individual students based on their abilities and progress, and the schools will review and revise the IEP regularly to reflect the actual learning situations of the students with ID.  In other words, as the learning of individual students with ID needs to be revised in the light of their progress, failure to achieve learning outcomes should not be a reason for the application.”

77.  But as I have said, it is now clear from the uncontradicted evidence that this is far from the complete and true picture.  The policy of the Government, as practised on the ground, is that it will allow schools to retake all those who wish to repeat their studies provided that there are sufficient vacancies to accommodate them.

78.  So in short, notwithstanding the presence of this unique age restriction in ID schools which does not find a place in mainstream schools, the net result is nonetheless that for a student like the applicant who has completed 12 years’ free education (including the EYE programme), his application for an extension of study does stand a chance of approval, depending on the availability of vacancies.

79.  Having thus ascertained the effect of the rule complained of on the applicant’s application for an extension of study, one moves on to compare his case with that of an appropriate comparator in a mainstream school.  The comparator may be a real or hypothetical one.  It does not matter.  What matters is one must compare like with like and not otherwise.

80.  In my view, a true comparison can be found with a secondary school student who has completed his 11 years of free education (that is to say, he has studied up to and including Secondary 5 and has taken the HKCEE) in the school year 2008/2009.  One is not concerned with any other school year, for it is at the end of the current school year that the applicant is asking for an extension of study.  One is not concerned with the previous nine years’ free education for mainstream students, nor the future 12 years of free education to be implemented stage by stage starting from the coming school year.

81.  This (hypothetical) mainstream student, who has just completed his Secondary 5 and taken the HKCEE, now wishes to apply to repeat his Secondary 5 study in a mainstream aided school.  What is the treatment he will get?  And again here, one detects a gloss in the applicant’s case.  By simply focusing on the presence or absence of an age restriction in ID schools and mainstream schools in the comparison exercise, the applicant, both in his Form 86 and arguments in Court, has glossed over the undeniable fact that such a mainstream student’s application for repeating his Secondary 5 study will not be automatically approved.  As is all too well known, any Secondary 5 repeater-to-be has to compete with his fellow students for places in aided secondary schools.  I have already outlined the policy and practice of the Government in relation to repetition in mainstream secondary schools.  It is merit-based.  It is subject to availability of vacancies.  Furthermore, it is subject to an overall 5% quota applicable to the whole (secondary) school.  Depending on individual schools, competition can be fierce or otherwise.

82.  The 5% cap on mainstream school repetition is a significant barrier.  Thus, in terms of the position at the School in the coming school year, which one is concerned with as the present application for judicial review is case-specific, the number of extensions that may be accommodated under the prolonged absence ground and vacancies available amounts to 11.76% of the total enrolment in the School for the coming year.  This compares favourably with all mainstream aided secondary schools, because, without exception, they are subject to the 5% cap.  If one were to ignore the school places made available to those who can invoke the prolonged absence ground, and to those who have not received 12 years’ free education and/or completed the EYE programme (and therefore rank in priority to those, like the applicant, who have), the remaining vacancies available would still amount to 4.7% of the total enrolment.  Bearing in mind that the 5% cap in a mainstream school simply represents the maximum percentage of repeaters allowable but not the percentage of vacancies actually available and the 5% quota is in fact spread among the whole school, one simply cannot conclude that the 4.7% in the School compares less favourably with a comparable situation in a mainstream school.

83.  The applicant bears the burden of proving less favourable treatment.  On the facts, I am afraid he has failed to do so.  He simply cannot establish that in terms of the requirements for approving an application for an extension of study or repetition, he stands in a worse position than a comparable counterpart in a mainstream school in getting his application approved.  Nor can the applicant, whether from the evidence filed by the respondents which contains many details and figures or from elsewhere, come up with figures, whether actual figures referable to the School for this coming year, or general statistical figures, to show that in terms of what is happening on the ground, the treatment he receives is less favourable. 

84.  That is quite fatal to the first point mounted on behalf of the applicant by counsel. 

85.  It should be noted that I am not in the present proceedings concerned with the position of an ID student who has reached or will reach the age of 18 but who has not had the benefit of 12 years’ free education and/or completed the EYE programme.

Midcourse repetition

86.  During the course of submission, the question of whether an ID student’s position is affected by the lack of an opportunity for “midcourse” repetition has been mentioned.

87.  It is common ground that during his 11 years of free education, a mainstream student has more than one chance to apply for a repeat of study (once in the primary school and theoretically an unlimited number of times in the secondary school), given the absence of an age restriction as such in the mainstream schools system and given how that system works.  On the other hand, given how the IEP works in the ID school system, there is, barring exceptions, no question of repeating a year of study during the 12 years of free education of an ID student.  The only time an IE student would ask for an extension of study would be the time when he finishes his 12 years of free education in an ID school, in the normal run of things.  This has been conveniently referred to by Ms Wong for the respondents as the “midcourse repetition” issue. 

88.  Ms Wong rightly points out that this is not an issue raised in the Form 86.  The applicant is not complaining that he has not got any chance to repeat his previous years of study before.  He is only complaining that he cannot have a further year of study in the School.

89.  But more substantively, this opportunity for midcourse repetition does not mean that overall speaking, a mainstream student stands a higher chance of repeating his Secondary 5 study than the applicant’s getting one further year of study beyond his 12 years’ free education.

90.  First, we have the evidence that in practice, mainstream schools tend to reserve proportionally more of their 5% repeater quota for Secondary 5 students.  Secondly and more importantly, superficially, if ID students can repeat their study at an earlier stage, there will be less ID students who will be applying for an extension of study at the end of their 12 years’ free education, and thus a better chance to have sufficient vacancies to accommodate all those who do so apply.  However, the analysis breaks down immediately when one realises that on the same assumption, whatever vacancies are available will be shared, not only by those who apply for an extension of study after having 12 years’ free education (as it is now the case), but also by those ID students in lower classes who according to the assumption, can apply for a repeat of study.  Bearing in mind that the burden lies with the applicant to show less favourable treatment, and on the existing state of evidence, the applicant simply cannot, based on this argument, show that the lack of an earlier chance to repeat has a necessarily detrimental effect on his chance of getting a place in his present application for an extension of stay.  Thirdly, one must always bear in mind that one is not concerned with an internal comparison.  One is comparing the position of the applicant with a comparator seeking to repeat his Secondary 5 study in an aided secondary school.  And therefore one must bear in mind the 5% cap.  The applicant simply cannot show that the lack of a midcourse repetition opportunity in an ID school (under normal circumstances) has resulted in his receiving less favourable treatment when compared with his counterpart in a mainstream school who does enjoy the opportunity of midcourse repetition, bearing in mind the 5% cap unique to mainstream schools.

91.  For all those reasons, I do not think this point advances the applicant’s case at all.

Conclusion on direct discrimination

92.  That being the case, I have come to the conclusion that the case of direct discrimination run by the applicant must be rejected.

93.  This makes it quite unnecessary to deal with Ms Wong’s further and more general point that no meaningful comparison can be made at all because one is concerned with two different educational systems and the school leaving arrangements in the two systems are simply parts of the two different systems.  One must look at the system as a whole, rather than any individual aspect, in order to do any meaningful comparison.  In any event, no meaningful comparison can be done because the two systems are so different.

94.  I simply record this argument of counsel.  I do not wish to express any definite view on it given my earlier conclusion, save to say that I have reservation with counsel’s submission, the determination of which requires much more mature submission than what I have heard at the substantive hearing (the applicant’s side has essentially made no submission in relation to this more general point raised by Ms Wong at the hearing). 

Misinterpretation and misapplication of policy

95.  The misinterpretation issue turns on the proper scope of application of paragraph 12(c) in Annex I to the Code of Aid for Special Schools, which sets an age limit of 20.  The Government maintains that whether in terms of intention or actual practice, paragraph 12(c) has always been applied to schools catering for non-ID students with SEN sitting for mainstream public examinations only.  The three extra years are meant to compensate these students for their non-ID disability who otherwise enjoy normal intellectual ability, when compared with mainstream students.  (For a mainstream student, if he starts at the age of 6, 11 years’ free education will take him to 17.  Under paragraph 12(c), the relevant special school student has up to the age of 20 to complete his study.  Therefore there are three extra years in favour of the special school student.)

96.  Misinterpretation and misapplication of an established policy is of course a standard public law ground for challenging a relevant decision.  The question in such a challenge is almost always whether there has really been a misinterpretation and thus a misapplication of the policy.  It is common ground that interpretation is a matter for the court.  A policy is not to be construed in the way in which an Act of Parliament or a statutory instrument would be construed, by application of finelegal rules of construction.  It is construed in the way on which an educated person, acquainted with the factual context, would construe it, by giving to it a common sense meaning and without resort to any such legal rules.  R v Secretary of State for the Home Department, ex parte Lancashire Police Authority [1992] COD 93; Wong Wei Man v The Amusement Game Centres Appeal Board, HCAL 775/2000, Stock J, 2 November 2000.

97.  There is indeed evidence that at least since 1977, a similar rule has already been in existence in the relevant Code of Aid for Special Schools, that the rationale for the rule has been explained in a White Paper (on Rehabilitation) released in May 1995 (see paragraphs 6.28 and 6.29 thereof), and that at least since the school year 2002/2003 when the EYE programme was introduced, the Government has required ID students who are 18 or will be 18 in the coming school year to make applications before being allowed to continue with or extend their study in an ID school.

98.  In my view, in the circumstances of the present case, how paragraph 12(c) has been implemented in practice is as important as what it says.  I readily accept that on the face of it neither paragraph 12(c) nor anything else in the Code of Aid draws any relevant distinction between ID schools and non-ID schools for students with SEN.  However, from the evidence filed with the Court, the intention behind the age restriction of 20 laid down in paragraph 12(c) is quite apparent, and the conduct of the Government has been, so far as the evidence goes, consistent in relation to its application.  Even if one were to start only from the school year of 2002/2003, by now, there has been a substantial history of the Government’s imposing the rather different age restriction of 18 on ID schools.  Depending on how one looks at it, at the lowest, one can say, for the Government, that there has been a change of policy in relation to ID schools, as evidenced by clear and consistent conduct, which is known to the relevant stakeholders in the field. 

99.  But much more important than all that, I do not think this argument based on paragraph 12(c) takes the applicant’s case anywhere.  When read carefully, paragraph 12(c) merely says that no student shall be allowed to remain in a secondary class of a special school after the end of the school year during which his 20^th birthday occurs except with the approval of the Permanent Secretary.  It is not inconsistent with the requirement that a student in a special school has to leave school upon completion of his relevant years of free education in that school (including the EYE programme where applicable), and save with the approval of the Permanent Secretary, he cannot enjoy an extension of study in the school.

100.  The former (restriction) is concerned with placing an age limit on the students studying in a school.  The latter is, on final analysis, concerns with a student’s school leaving arrangement upon completion of his free education in the school.  They are different matters.  One is not exclusive of another.

101.  To illustrate my point, suppose a student manages to finish his study and take the relevant public examinations before the age of 20.  Does it mean that paragraph 12(c) allows him to remain in the school because he has not yet reached 20?  The answer must be “no” because his leaving the school has nothing to do with whether he has or has not reached 20 in this hypothetical example; rather it is due to his completion of education offered by the school.

102.  In other words, even if, contrary to the Government’s contention, paragraph 12(c) applies to an ID school, it does not necessarily conflict with the so-called age restriction of 18 discussed at length in this case.  On final analysis, the age restriction of 18, insofar as it is relevant to the applicant’s case (ie an ID student who has completed his 12 years of education including the EYE programme), is about school leaving arrangement.  Paragraph 12(c) and the age restriction of 18 concern different subject matters.  The (hypothetical) misinterpretation by the Government of its own policy has no causal effect on the applicant’s case for an extension of one year’s study beyond his 12 years’ free education in the School. 

103.  As emphasised before, the present proceedings are not concerned with the position of an ID student who has reached or will reach the age of 18 but who has not had the benefit of 12 years’ free education and/or completed the EYE programme.

Inter-discriminatory group comparison

104.  The preceding conclusion makes it unnecessary for the Court to compare the case of an ID student with the case of a non-ID student with SEN studying in a special school and sitting for public examinations.  In relation to the latter student, it is said that he has until the age of 20 (as per paragraph 12(c)) to complete his study.  This purported comparison is put forward by the applicant as a fallback position subsumed under the second ground of challenge.  In other words, assuming that paragraph 12(c), contrary to the applicant’s case, is only applicable to the latter student but not the former, it is said that the former student has been treated less favourably than the non-ID student with SEN sitting for public examinations. 

105.  I need not deal with the interesting point raised by Mr Raymond Leung for the Equal Opportunities Commission at the hearing, namely, whether section 6(a) of our Disability Discrimination Ordinance, which is based on similar Australian legislation, allows such an “inter-discriminatory group comparison” to be made.  This point arises out of the fact that in our section 6(a), the wording used is “he treats him less favourably than he treats or would treat a person without a disability” whereas in the equivalent Australian legislation, instead of “without a disability”, “without the disability” is used.  Thus, the point arises as to whether under our wording, the comparator can be a person also with a disability, so long as it is different from the disability suffered by the complainant of less favourable treatment.

106.  Leaving this point aside and assuming that such inter-discriminatory group comparison can be made, the short answer to this fallback position of the applicant is this.  The extra years of education allowed to a non-ID student with SEN sitting for public examinations, which constitutes the favourable treatment complained about by the ID student, are referable not to the disability of the ID student, but rather to the disability of the non-ID student.  This is because the non-ID student with SEN has to compete with mainstream students with no SEN in the same public examinations.  The extra three years are meant to compensate for this non-ID student’s disability. 

107.  For these reasons, the second ground of challenge is also gone.

Legitimate expectation

108.  Finally, legitimate expectation.  As explained, according to the Form 86, the Convention as well as the Government’s relevant announcement have been relied on to found a case on substantive legitimate expectation.  However, at the substantive hearing, counsel chose not to run such a case but rather run a case of procedural legitimate expectation, that is to say, that there is a right to be consulted. 

109.  Ms Wong on behalf of the respondents again objected to the running of this new case on the ground of lack of evidence.

110.  I need not decide the point on that narrow basis.  In my view, the new argument based on procedural legitimate expectation will not take the applicant’s case anywhere.  It again reflects a failure on the part of those representing the applicant to appreciate that this is not a class or representative action.  Nor is this application for judicial review, as it is framed, concerned with a general review of the education of students with SEN, particularly ID students in ID schools.

111.  In other words, one must focus on the case of the applicant and the relevant facts.  The complaint of a failure to consult, even if upheld, will not take the applicant’s case anywhere. 

112.  First, it will not give rise to a substantive right on the part of the applicant to have a school place in the coming year. 

113.  Secondly, a successful challenge against the so-called internal review conducted by the Government regarding the compatibility of the Government’s position with its Convention obligations, on the ground of lack of proper consultation with all stakeholders, will not of itself mean that the existing position of the Government is necessarily incompatible with its Convention obligations and therefore must be struck down on that basis.  All it will mean is that the Government will need to conduct a review, with proper consultation, afresh.  This will not help the applicant get a place in the coming year in the School at all.

114.  For all these reasons, even if allowed to be run, the new case of the applicant, based on procedural legitimate expectation, must be rejected as being academic to the actual case of the applicant.  I wish to say no more about it.

115.  As regards the original case based on substantive legitimate expectation, as it has not been run by counsel at the substantive hearing, it must be rejected on that basis.  In any event, as all parties agree, the relevant Convention obligations are merely aspirational in nature, and there are built-in qualifications to the commitments of the Government.  It is difficult to see how one can found a case of substantive legitimate expectation on the Convention obligations.

Outcome

116.  For all these reasons, the application for judicial review fails.  It is dismissed. 

117.  By way of a costs order nisi, and in accordance with usual principles for the exercise of the court’s discretion on costs, the Court orders the applicant pay the costs of these proceedings to the respondents, to be taxed if not agreed, with a certificate for two counsel.  There will be legal aid taxation of the applicant’s own costs.  The two interested parties shall bear their own costs respectively.

Postscript

118.  This judgment will come as a great disappointment to the applicant, her mother and family, and all their supporters.  It may also be perceived as a set back to all concerned parties and groups, including the Parents and Teachers Association of the School, for the cause of better education of ID students.  Very understandably, feelings and sentiments have been running high, and to some extent, the Court shares those feelings and sentiments and is sympathetic to the relevant cause. 

119.  However, cases are decided according to the issues properly framed before the court.  The court is not at liberty to look at issues and matters or to conduct a general review that is not within the defined compass of a set of proceedings.  Procedural rules of general application are in place to define issues and impose discipline on parties and the court alike as regards what can and cannot be argued or adjudicated upon in a given set of proceedings.  Ventilation and debate of any matters going beyond that well-defined scope must be done in some other forum.  For the reasons which the Court has endeavoured to give in this judgment, the Court has come to the conclusion that as the issues are framed and on the basis of the applicant’s case, the proceedings must be dismissed. 

120.  The Court has left open other issues and matters and their resolution by the court, if ever required, will have to await another appropriate occasion. 

121.  It only remains for me to thank counsel for their assistance.  I also thank Madam Lau (Mrs Ho) who as chairperson has appeared on behalf the Parents and Teachers Association of the School.  She has made her submission clearly and concisely.  Understandably, her submission cover many matters that are not within the proper scope of the present judicial review application but rather go to the education of ID students in Hong Kong generally.  And to some extent, like those made by others, her points suffer from misconception of the actual facts.  Yet all this does not detract from the admiration that the Court (and many others) have for her audacity, perseverance and sincerity in championing for the good cause of better education of ID students in Hong Kong.