LI YIU KEE v. THE CHINESE UNIVERSITY OF HONG KONG

HCAL 5/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 5 OF 2008

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

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

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

J U D G M E N T

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

Introduction

1.  This application for judicial review raises an important question on the language of instruction in The Chinese University of Hong Kong, the second oldest university in Hong Kong.  The applicant, a final year undergraduate student of the Department of Government and Public Administration in the University, contends that the ‘principal language of instruction’ in the University ‘shall be Chinese’, basing himself on the express wording found in the founding Ordinance of the University, namely The Chinese University of Hong Kong Ordinance 1963 (Ord no 28/63), as well as the identical wording found in the preamble to The Chinese University of Hong Kong Ordinance, Cap 1109 (the Ordinance), which was passed in 1976 to repeal and replace the 1963 Ordinance.

2.  The University disagrees.  It argues that what is stated in the preamble to the Ordinance (and in the preamble to the 1963 Ordinance) has to be read in its historical context.  It does not mean, as a matter of legal obligation binding on the University now and in future, that Chinese must be or remain ‘the principal language of instruction’ in the University.  It contends that the University has freedom, autonomy and flexibility in determining the language or languages of instruction, principal or otherwise, to be used in the University.

3.  Thus in terms of concept and legal perception, the battle lines are drawn.  In terms of things happening on the ground, what precipitated the present litigation was a report published by the University’s Committee on Bilingualism on 16 July 2007 (the Report).  The Report was endorsed by the Vice-Chancellor on 12 September 2007.  It was formally received by the Senate in its meeting held on 9 October 2007.  The Senate also resolved to establish a Senate Committee on Language Enhancement recommended in the Report.

4.  The applicant contends that the Report recommends a policy of language of instruction which is inconsistent with the requirement in the preamble that the principal language of instruction in the University shall be Chinese.  The applicant also says that such a policy of language of instruction will result in the principal language of instruction in the University becoming English and not Chinese, or alternatively in English being accorded ‘equal status’ with Chinese as a language of instruction.

5.  The University denies these contentions.

6.  The battle lines are therefore also drawn in terms of the policy of language of instruction recommended in the Report, which the Senate has ‘received’ and has set up the Senate Committee on Language Enhancement to implement, and in terms of what will happen to the language of instruction in the University after implementation.

7.  It is apparent from the submission made on behalf of the applicant by Mr Denis Chang SC, Ms Jocelyn Leung with him, that the main objective of the present litigation is to obtain a declaration on the legal duty of the University to use Chinese as the principal language of instruction in the University.  That is the first declaration sought in the amended notice of application for leave.  It is on the duty level, as leading counsel has put it.  On the level of breach, counsel is also minded to ask the Court to grant a declaration to the effect that the policy of language of instruction recommended in the Report is inconsistent with the legal requirement on the University to use Chinese as the principal language of instruction.  It is fair to say that although other declarations and orders of certiorari are also prayed for, the two declarations represent the gist of the relief sought by the applicant against the University.

8.  Whilst denying that there is imposed on the University the legal requirement to use Chinese as the principal language of instruction or that there is any breach of any legal duty by reason of the Report (or the reception or implementation of it), the University is also keen for the Court to pronounce on or otherwise clarify the University’s duty, if any, to use Chinese as the principal language of instruction, as a matter of law.  Lord Lester of Herne Hill QC (leading Mr Paul Lam) has likened the present proceedings to a construction summons, in response to a query raised by the Court at the hearing.  Whether this is an appropriate approach in these judicial proceedings would have to be considered further, where necessary.

History

9.  Given the nature of the disputes, it is not sufficient to simply look at the Ordinance and construe the words one finds there.  The purposive approach to construction that the courts use, an approach mandated in Hong Kong by s 19 of the Interpretation and General Clauses Ordinance (Cap 1), requires the purpose and context in its widest sense of the legislation in question to be looked at.  Statutory interpretation is ‘holistic and purposive’: Secretary for Transport v Delight World Ltd (2006) 9 HKCFAR 720, 730D-E, per Bokhary PJ.  Moreover, a proper understanding of the relevant history of the University, including its language of instruction, is highly pertinent to understanding, and ultimately resolving, the disputes between the parties.

10.  It is therefore not surprising that there have been many materials filed by way of evidence in these proceedings, pertaining to the history of the University, particularly in its earlier years.  Of particular significance are the Fulton Report 1960, formally entitled ‘The Development of Post-secondary Colleges in Hong Kong’ prepared by Mr John S Fulton (subsequently Lord Fulton), then Principal of the University College of Sussex, the Report of the Fulton Commission 1963, a Commission chaired by Mr Fulton, The First Six Years 1963-1969, the Vice-Chancellor’s Report, written by the first Vice-Chancellor of the University reporting on the first six years of operation of the University after its founding in 1963, as well as the excellent book edited by Professor Alice Lun Ng, The Quest for Excellent, a History of the Chinese University of Hong Kong from 1963 to 1993. 

11.  For present purposes, a convenient summary of the relevant history can be found in Appendix 3 of the Report which comprises extracts from Professor Ng’s book.  It reads:

“1.  [In the 1950s], [d]emand for more school places [in Hong Kong] was caused not only by the increase of population but also by the fact that among the incoming refugees, there was a large number of students ranging from primary to university levels who wanted to continue their education in Hong Kong.  The result was a great expansion of the student population, especially in the Chinese middle schools.  The Hong Kong government’s attention was first drawn to Chinese primary school education.  The late 1940s saw the beginning of the active development of Chinese primary schools.  Government primary schools were opened and subsidized Chinese primary school places were increased.  Chinese middle schools remained privately operated.  In 1951, approximately 18,000 students were enrolled in Chinese middle schools and the number increased to 20,000 in the following year.  To give them due recognition, the Hong Kong government held its first Hong Kong Chinese School Certificate Examination in 1952.  920 students took the examination.

2.  A British university with English as the medium of instruction and a pretty high standard of English Language as a compulsory subject in the entrance examination, HKU[, the only degree-granting authority in Hong Kong,] offered very little chance for Chinese middle school graduates to gain admission.

3.  A special committee composed, for the first time entirely of local residents, was appointed in 1951 by the Governor, Sir Alexander Grantham, to look at the problem [of insufficient higher education places and review how higher education should cater to the needs of the society].  The Report of the committee, popularly known as the Keswick Report, gave a detailed review of the supply of higher education in Hong Kong.  Its proposed solution was to introduce in HKU degree courses in arts and sciences, using Chinese as the medium of instruction.

… [The proposed solution was not successful] …

7.  In an earlier memorandum dated 26 January 1956, dealing with the issue, L. G. Morgan, Deputy Director of Education, focused his discussion entirely on the Keswick, and the Jennings and Logan’s reports, and on how HKU could adjust to meet the demands (L. G. Morgan, a Memorandum on Entry to the University of Hong Kong by Students from Chinese Secondary Schools, typescript, January 1956).  In another memorandum dated October 1956, Morgan provided a much broader view of the issues.  He pointed out that [the government] should not just focus on providing opportunities for a limited number of outstanding graduates of Chinese middle schools to enter HKU; it should also pay attention to the importance of Chinese education in a Chinese society, as well as the antagonism that might result from discontented teachers and students of Chinese middle schools.  Five possible measures were proposed to meet the overall needs of the Chinese secondary school students.

8.  The first three items still focused on HKU, and discussed how the University could open its door to the Chinese secondary school students … The fourth proposed item, however, broke new ground in suggesting ‘the development of four-year post secondary colleges to award recognized diplomas or even degrees through HKU or an independent degree-granting authority’.  A more significant proposal as an alternative to the fourth proposal was ‘the establishment of a Chinese university with its own character and degree-granting powers’.  This was the first time that the idea of a second university appeared in a government proposal (A Further Memorandum on Chinese Matriculation and on the Provision of Facilities for Higher Education for Students from Chinese Middle Schools, typescript, October 1956).

9.  Schools in Hong Kong had always maintained a two-tier system of Chinese and English.  Since the establishments of HKU in 1911, English education was able to have a complete education system from the primary to the tertiary levels.  But the Chinese school system ended at middle school.  Before 1949 this did not bring discontent, because the school systems and curricular of mainland universities were connected with the Hong Kong middle schools, thus providing places for Chinese middle school graduates to further their education.  But after the change of government in China, Hong Kong students were unable to go back there for their studies.  Thus the Chinese education system lost its university competent, and resulted in an imbalance in the two-tier system.  In addition, most of the financial support for the reconstruction and development of HKU after the war came from the Hong Kong Government Treasury.  But the private colleges, playing important roles in post-secondary education, received little or no help from the government.  In 1956, Morgan made this observation: ‘They (The Chinese middle schools) cannot but feel a grievance at the present position whereby government provides $8 million per annum as subvention to the University of Hong Kong which caters for the products of the Anglo-Chinese schools, and makes little or no provision for university courses which will cater for the products of the Chinese secondary schools.’  (Morgan’s Memorandum, January 1956).

…

11.  [The three colleges (Chung Chi, New Asia and United) established] the Chinese Colleges Joint Council in February 1957 which marked another important step on the road to the founding of The Chinese University.

12.  [T]he question of whether to accept the proposal of the [Chinese Colleges] Joint Council to establish a second university in Hong Kong, composed of private colleges, that would use Chinese as the main medium of instruction, involved very important issues relating to education policy and academic standards.  This would also be the first case dealt with by the [British] Inter-University Council [for Higher Education Overseas] in the establishment of a university using a language other than English as the primary medium of instruction.  After almost ten months, during which numerous meetings and discussions were held between Cox, Morris and Carr-Saunders representing the British side, and Morgan and Crozier representing Hong Kong, it was finally decided in August 1958 that another university would be established in Hong Kong, and it would be the apex of Chinese education under the two-tier education systems in English and Chinese.  [It was] concluded that the proposals and requests raised by the [Chinese Colleges] Joint Council should be given serious consideration.

13.  On 2 June 1959, the Hong Kong government officially announced that it was prepared to establish a new university with Chinese as the main medium of instruction.  The plan was to start with the funding of the development of the three Colleges, United, Chung Chi and New Asia. … More direct in its influence was Fulton’s report [entitled The Development of Post-Secondary Colleges in Hong Kong] of March 1960, which had been adopted as the blueprint for the establishment of the University.  John Fulton also stressed in the report that the newly-proposed university which adopted Chinese as the medium of instruction should cater to the unique situation of Hong Kong, and its development objective should be to integrate Chinese and Western cultural heritage with modern learning.

14.  Sir Robert Black stated at the Post-Secondary Colleges Joint Diploma Conferment Ceremony (專上學院統一頒授文憑典禮) in February 1961 that ‘The Chinese University should not merely introduce and promote Chinese culture, it should aim at amalgamating Chinese culture and modern scholarship, and contributing to the integration of Chinese and Western cultures.’

15.  The Chinese University of Hong Kong was officially founded in October 1963. … The name ‘Chinese university’ had been widely used in the discussions of relevant parties, and in newspapers and government documents ever since the idea of setting up a second university was conceived by the government in 1956.  The rationale was that this name best conveyed the University’s Hong Kong connection and cultural heritage.

16.  The Chinese University of Hong Kong Ordinance, together with its Statutes, was passed in the Legislative Council and came into effect on [15] September 1963.  The Ordinance declared the establishment of a university with a federal system with Chung Chi College, New Asia College and United College as the constituent colleges and with Chinese as the principal language of instruction.  On 17 October 1963, the Governor, [Sir Robert Black,] in his capacity as Chancellor, officiated at the inauguration ceremony of the University.

Note:  Corresponding parts of the Chinese version which are not found in the English version have been translated into English and printed in italics.”

The 1963 Ordinance

12.  As mentioned, the founding Ordinance of the University was the Chinese University of Hong Kong Ordinance 1963.  It represented, essentially, the implementation of the Report of the Fulton Commission 1963.  The Ordinance was, with modifications, based on the draft Ordinance included in the Report (at pages 56 to 65).  It is interesting to note that the draft Ordinance did not contain a preamble, whereas the 1963 Ordinance contained a preamble, which first mentioned that in the University, ‘the principal language of instruction shall be Chinese’.  The entire preamble reads:

“WHEREAS it is desirable to establish a University with a federal constitution in which the principal language of instruction shall be Chinese-

(a)  to assist in the preservation, dissemination, communication and increase of knowledge;

(b)  to provide with the Colleges regular courses of instruction in the humanities, the sciences and other branches of learning of a standard required and expected of a University of the highest standing;

(c)  to stimulate the intellectual and cultural development of Hong Kong and thereby to assist in promoting its economic and social welfare”.

13.  Although the use of Chinese as the principal language of instruction was only first mentioned in the preamble to the actual Ordinance passed, the idea of using Chinese as the principal language of instruction was referred to by Government officials, the Fulton Report 1960, the Report of the Fulton Commission 1963 as well as many others concerned.

The 1976 Ordinance

14.  What caused the repeal and replacement of the original Ordinance by a new Ordinance in 1976 was, amongst other things, the desire to transfer some of the powers and functions of the constituent Colleges of the University to the University and the redefinition of the principal role of the Colleges as being the provision of student-oriented teaching under the University’s direction.  The Ordinance therefore contains an unusually long preamble:

“Preamble

WHEREAS— 

(a)  The Chinese University of Hong Kong was established and incorporated in 1963 by The Chinese University of Hong Kong Ordinance (Cap 1109 1965 Ed.) as a University with a federal constitution;

(b)  the original Colleges of the University are Chung Chi College, New Asia College and The United College of Hong Kong;

(c)  it is considered desirable that some of the powers and functions conferred on the said Colleges under their respective constitutions and Ordinances should be vested in The Chinese University of Hong Kong and that the principal role of the said Colleges be the provision of student-orientated teaching under the direction of The Chinese University of Hong Kong;

(d)  it is also considered desirable to make certain alterations in the constitution of The Chinese University of Hong Kong;

(da)  the Council of the University has, by special resolutions, resolved that Shaw College, Morningside College, S. H. Ho College, C. W. Chu College, Wu Yee Sun College and Lee Woo Sing College shall be constituent Colleges of the University;  (Added 59 of 1986 s.4.  Amended 18 of 2007 s.5)

(e)  it is declared that The Chinese University of Hong Kong, in which the principal language of instruction shall be Chinese, shall continue to-

(i)  assist in the preservation, dissemination, communication and increase in knowledge;

(ii)  provide regular courses of instruction in the humanities, the sciences and other branches of learning of a standard required and expected of a University of the highest standing;

(iii)  stimulate the intellectual and cultural development of Hong Kong and thereby to assist in promoting its economic and social welfare.”

15.  It should be noted that paragraph (e) of the preamble, couched in the form of a declaration, is essentially the same as the preamble to the former Ordinance.  It contains the essential statement, inserted between commas, that in the University the principal language of instruction shall be Chinese.

16.  It is appropriate to add at this juncture that the Chinese version of the Ordinance which came into being many years after it was enacted in 1976, as part of the Government’s efforts to provide an authentic version in the Chinese language of each and every piece of written law in Hong Kong, reads in paragraph (e) of the preamble:

“現宣布香港中文大學（其主要授課語言為中文）須繼續-

(i)  …

(ii)  …

(iii)  …”

17.  The use of the Chinese character ‘為’ in the words ‘其主要授課語言為中文’ (which appear within brackets) gives rise to a further argument on the meaning of the statement in the preamble relied on by the applicant, which I shall return to.

18.  The Ordinance, made in 1976, provides in section 4(1) that the constituent Colleges and members of the University shall be or continue to be a body corporate called The Chinese University of Hong Kong (香港中文大學) which shall be the same University as that established by the 1963 Ordinance.  The University shall have perpetual succession: section 4(2).  Section 6 of the Ordinance provides that there shall be a Council, a Senate and a Convocation whose respective constitutions, powers and duties shall be as prescribed by the Ordinance and the Statutes contained in Schedule 1 of the Ordinance.

19.  Section 7 sets out the powers and duties of the Council which are said to be ‘subject to this Ordinance and the Statutes’.  It is the governing and executive body of the University and has the management and control of the affairs, purposes and functions of the University.

20.  Section 8(a) of the Ordinance provides that ‘subject to this Ordinance and the Statutes’, and subject also to review by the Council, the Senate shall have the control and regulation of ‘instruction, education and research’. 

21.  The composition of the Senate is governed by Statute 14.  Paragraph 1 provides that the Senate shall consist of the Vice-Chancellor of the University, the Pro-Vice-Chancellors, the Heads of the original Colleges and of Shaw College, the Dean of each Faculty and of the Graduate School, the Professors or the Readers in each department in which there is no professor, the Chairman of each Department and the Directors of Studies, the Director of the School of Continuing Professional Studies, two Fellows of each of the original Colleges and Shaw College, the Registrar, the Librarian, the University Dean of Students, the President of the University Students Union, one elected student member of each Faculty of the University, and in relation to the original Colleges and Shaw College, one elected student member representing the Students Union of each College.  Paragraph 4 of Statute 14 again provides that ‘subject to the Ordinance and Statutes’, the Senate shall have the powers and duties to, amongst other things, ‘direct and regulate the instruction and teaching in approved courses of study’ (paragraph 4(c)).

22.  There is no dispute that ‘subject to [the] Ordinance and the Statutes’, the Senate has the control and regulation of the instruction in the University; it has the power and duty to direct and regulate the instruction and teaching in approved courses of study in the University.  It is common ground that, subject to the applicant’s argument, the Senate has power and control over the language of instruction.

The two main arguments

23.  The important issues are, first, whether the power and control are, as a matter of statutory construction, limited by a legal requirement to use Chinese as the principal language of instruction in the University, and, secondly, whether the exercise of the power over instruction is restricted in any way by a legal requirement to promote the policy and object of using Chinese as the principal language of instruction.  The first question may be called the question of construction, or the legal prescription argument.  The second question is the so-called Padfield argument. 

Report of the Bilingualism Committee

24.  Before I deal with these two arguments further, I would move on to explain the Report and its relevance in this litigation.

25.  The Committee responsible for writing the Report was appointed by the Vice-Chancellor in 2005.  It was set up to review the University’s language policies and make recommendations on how it should uphold its ‘long cherished policy of bilingualism’, which is not subject to challenge in these proceedings.

26.  In the Executive Summary of the Report, the bilingual policy of the University was explained:

“The Mission of Bilingual Education at CUHK

2.  This bilingual policy of liangwen sanyu 兩文三語 (‘two written languages and three spoken codes’) has been implemented at CUHK for more than four decades.  The use of liangwen sanyu in teaching has been a distinctive characteristic and strength of the University.  This policy as well as its objectives should remain unchanged.

3.  In facing the challenges of globalization, a major trend in today’s world, CUHK must enhance its bilingual education with a view to promoting cross-cultural exchange and enabling students to broaden their view of the world.  Such efforts are crucial not only for the intellectual growth of the students, but also for the future of the University and its competitiveness in the international arena.

4.  To be globally competitive, CUHK must acknowledge the importance of English as an international language.  At the same time, the University must also honour its mission and re-affirm its commitment to the promotion of Chinese culture and language, as well as its dedication to the preservation and development of indigenous culture and language in Hong Kong.

Definition of Bilingualism (liangwen sanyu)

5.  In the context of CUHK, bilingualism can be understood as the use of liangwen sanyu, a term widely adopted by the local education sector.  Liangwen (‘two written languages’) refers to written Chinese (Zhongwen 中文) and written English (Yingwen 英文), while sanyu (‘three spoken codes’) comprises spoken Cantonese (Yueyu 粵語), Putonghua (普通話) and spoken English (Yingyu 英語).

Functions of liangwen sanyu in Hong Kong Higher Education

6.  Cantonese is the language of the local community; Putonghua is the national language and also the language common to all Chinese communities around the world; and English is an international language, the lingua franca of business and many professions.  It is on the basis of this understanding that CUHK develops its bilingual education.

Objectives of Bilingual Education

7.  In general, CUHK shall cultivate a liangwen sanyu environment that is conductive to the improvement of students’ proficiency in both Chinese and English, in the skills of listening, speaking, reading and writing, in comprehension, reflection and discourse, and in the writing of academic papers and reports.

8.  The bilingual policy of the University aims to improve students’ performance in learning.  It also aims to prepare them for life-long learning, employment and social participation.  Improvement in bilingual proficiency can help students achieve better self-understanding, broaden their view of the world, deepen their concern for international affairs, and increase their appreciation of cultural diversity.  Bilingual education is indispensable for preparing students, culturally and linguistically, for living and working in the globalized world today.

9.  The two written languages and the three spoken codes (liangwen sanyu) serve distinct functions as languages of academic inquiry and instruction at the University.  As society evolves, the functions of liangwen sanyu will change, and the relative weight of each language as a medium of instruction will also need to be adjusted accordingly.

10.  The University policy on bilingualism aims to promote a multi-cultural milieu on campus.  Students are encouraged to use liangwen sanyu for learning, academic exchange, and interacting with teachers and peers.  A more culturally diverse campus will in turn facilitate the implementation of the bilingual policy.

11.  All undergraduate students, local or non-local, and regardless of their linguistic and cultural backgrounds, should receive training in both Chinese and English during their course of study at CUHK.  Students whose native language is Chinese are expected to have attained a relatively high level of proficiency in both Chinese and English upon graduation, and be able to use both languages effectively in daily life and at work.  Those whose native language is not Chinese and who have not been able to meet the Chinese language requirements stipulated by the Senate on admission should attain a prescribed level of proficiency before graduation, such as completing language courses specified by the Senate and meeting the credit requirements.”

27.  Paragraphs 12 to 17 in the Executive Summary repeat paragraph 7.4 to 7.11 of the Report, and deal with the language of instruction:

“Major Recommendations of the Committee

Language of Instruction

12.  Language of instruction is an important aspect of the University’s bilingual education policy.  The language of instruction should be understood in the context of different teaching and learning activities.  It refers not only to the language used at lectures, but also to the language employed in reading and reference materials; discussions at tutorials; projects or class presentations; laboratory, practicum and clinical sessions; assignments and examinations; and individual supervision.

13.  The choice of language of instruction should be based upon the following factors: the nature of individual academic subjects; the language currently used as the predominant medium for academic expression and publication in the subjects concerned (e.g., the language used in teaching materials, academic journals and proceedings of international conferences); the requirements for professional qualifications and teaching and learning effectiveness; the language habits, linguistic competence and cultural background of both students and teachers; as well as CUHK’s commitment to caring for the Chinese language.  To achieve optimal pedagogical results, the language of instruction in individual subjects should be set by the Boards of Departments concerned, with reference to the above factors.

14.  Depending on the nature of the academic subject, the language used at lectures should be set by the Boards on various departments according to the following principles:

14.1  For courses that are highly universal in nature, with little emphasis on cultural specificity, and have English as the predominant medium for academic expression and publication (such as courses in the natural sciences, life sciences and engineering sciences), English should be the preferred language for lectures so as to facilitate direct and accurate articulation of concepts, and to be in line with international practice.

14.2  For courses that emphasize cultural specificity and have Chinese as the predominant medium for academic expression and publication (especially courses in Chinese culture, society and history), or courses that are related to philosophy of life, Chinese (Cantonese or Putonghua) should be the preferred language for lectures.  The proportion of courses taught in Putonghua may be increased according to actual need.

14.3  For courses that emphasize cultural specificity and have both Chinese and English as primary media for academic expression and publication (in particular, some of the courses in the social sciences and the humanities), either Chinese (Cantonese or Putonghua) or English may be used as the language for lectures.

14.4  For courses that are related to local society, politics and culture, Cantonese should be the preferred language for lectures, so as to preserve and nurture the indigenous language, and to promote the socio-cultural development of Hong Kong.

15.  Under special circumstances, the Boards of Departments may exercise flexibility in deciding on the language for lectures.  Such a decision should be made only after the Board has given due consideration both to the above principles and to such factors as the language habits, the linguistic competence and the cultural background of the students and teachers, and has consulted the teachers concerned.

16.  In addition, for academic subjects leading to professional qualifications (such as medicine, Chinese medicine, law, accountancy, engineering and architecture), the choice of appropriate language for lectures should be subject to relevant professional requirements.

17.  General Education (GE) has been a distinctive feature of the CUHK tradition.  GE courses will normally be taught in Chinese (Cantonese or Putonghua).  For each area of the GE curriculum, courses in English should be offered for non-Chinese-speaking students or other students interested in taking such courses.  For GE courses related to Western civilization or subjects that are highly universal in nature, lectures may be conducted in English.”

28.  Paragraph 18 of the Executive Summary summarises the fuller discussion on the University’s caring for the Chinese language and promotion of Chinese culture contained in paragraph 17.12 of the Report.  Paragraph 18 reads:

“Caring for the Chinese Language and Promotion of Chinese Culture

18.  In the face of the diversification and internationalization for higher education, and confronted with the increasing dominance of the English language, which may affect the roles and functions of the Chinese language in academia, CUHK should take up the responsibility of caring for the Chinese language.  To this end, the Committee recommends the following measures in addition to the above-mentioned policy on language of instruction:

18.1  Departments that use English as the language for lectures according to the nature of their subjects or professional requirements may also consider offering some of their courses in Chinese.

18.2  Departments that use Chinese as the language for lectures according to the nature of their subjects or professional requirements may also consider offering some of their courses in English, especially those related to Chinese culture, society and history, for the purpose of promoting Chinese culture.

18.3  Regarding research, the University will continue to support scholarly work on the Chinese language, Chinese culture and local culture.  It will also encourage publication of high-quality research in other fields using the Chinese language, and will give due recognition to such research accomplishments.

18.4  Besides teaching and research, the University should also promote the use of Chinese as the language for disseminating knowledge, including initiatives such as publication of Chinese-language journals and books, production of Chinese-language teaching material for higher education and for professional disciplines, and translation of academic publications.

18.5  The Committee recommends that the University provides resources, wherever practicable, to support the above-mentioned for the caring and promotion of the Chinese language.”

Arguments over the Report and current position

29.  As described, it is the contention of the applicant that the recommendation in the Report is inconsistent with the (contended) requirement that Chinese be the principal language of instruction in the University, and that if implemented, it would result in Chinese being no longer the principal language of instruction in the University.  In the evidence, the applicant comes up with statistics and figures to prove the current trend and what the future would likely be if the Report is followed. 

30.  The University disagrees.  In the evidence filed, the University has also produced statistics and figures, seeking to prove that Chinese has always been and remains the principal language of instruction in the University.  It also predicts that the position would remain the same after the implementation of the Report. 

31.  It is plain that the dispute is as much a matter of statistics as impression and perception.  Quite obviously, statistical expertise is required if one wishes to be scientific and precise, rather than subjective.  Moreover, there is the question, and indeed an important question, of definition.  Instruction takes place not only by means of lectures, but also by means of tutorials, small class discussion, projects, laboratory experiments and workshops etc.  Furthermore, it is common ground that some disciplines are essentially taught in English in the University, such as law, medicine, engineering etc.  And that, in itself, even the applicant accepts, does not mean that the principal language of instruction in the University is not Chinese.  The overall picture, it is contended, has to be taken into account.  But again, this is a question of definition.  After all, how ‘overall’ is overall?  Does one treat all students and all courses in the University alike and simply count the number of hours that Chinese (basically Putonghua and Cantonese) is used in lectures, classes etc, or does one take into account the number of faculties and departments which principally use another language (English) as the language of instruction, in gauging the position, whether present or future?

32.  These questions about definition and statistics will be returned to when I come to the question of construction.

33.  But having said all that, it must also be fair to say that in the early years of the University, no matter what definition one employs and what statistical method one uses, Chinese was indeed the principal language of instruction in the University.  It is only in recent years that the position has become controversial, and I accept, on the evidence, that if the Report is implemented, the position in future would be even more controversial, in terms of whether Chinese will or will not remain the principal language of instruction in the University.

34.  But all this is by the way.  Both sides are agreed, and I think they are right, that the resolution of the issues before the Court does not require the Court making a finding on what the present position is or what the future position would be if the Report is implemented.  This point will become apparent when the two issues are examined in turn.

Statutory construction – the Preamble

35.  I now deal with the first issue of construction.  It is the contention of the applicant that as a matter of construction of the Ordinance, it is a legal requirement binding on the Senate (as well as the Council and indeed the University itself) that Chinese shall be the principal language of instruction.

36.  The first thing to note is that using Chinese as the principal language of instruction is only mentioned in the preamble to the Ordinance, but not in its operative part.  In particular, it is not mentioned at all in section 8 of the Ordinance, which gives the Senate the control and regulation of instruction in the University or paragraph 4 of Statute 14 which provides for the Senate’s power and duty to direct and regulate the instruction and teaching in approved courses of study in the University.

37.  Secondly, it is plain beyond argument to the contrary that paragraph (e) in the preamble which is the only place where it is mentioned, between commas, that in the University Chinese shall be the principal language of instruction, has no legal effect in itself.  In other words, since a preamble is, by definition, not contained in the operative part of an ordinance, in itself it does not have legal effect.

38.  But it does not mean that it cannot affect the interpretation of those provisions contained in the operative part of the statute or ordinance.  It may do so in two ways.  First, it may help to construe the provisions if there is an ambiguity regarding the proper meaning of the provisions.  Secondly, regardless of whether an ambiguity is present, the preamble forms part of the context of the provisions under interpretation and as such, can and should be looked at.  Indeed, somewhat paradoxically, in order to determine whether there is any ambiguity in the provisions requiring construction, one must read the Ordinance, including the preamble to the Ordinance, as a whole; the preamble forms part of the context in which the provisions must be read.

The Hanover case

39.  The position has been expounded authoritatively by the House of Lords in the leading case of Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436, involving the construction of a 1705 statute, enacted during the reign of Queen Anne, providing for the naturalisation of the Princess Sophia, Electress of Hanover, and ‘all persons lineally descending from her’.  The issue was whether, by reason of what was set out in the preamble which sought to explain the genesis of the Act, the statutory naturalisation provided in the body of the Act was limited to persons born in the monarch’s lifetime.  It was argued on behalf of the Crown, contending for a restrictive interpretation, that since the wording in the operative part of the Act was general, the preamble should be resorted to so as to read down the generality of the operative part of the Act, and to give effect to what was actually and truly intended.  It was, however, contended for the descendent of the Princess claiming naturalisation under the Act that as the provisions in the operative part of the Act were unambiguous, the preamble could not be looked at at all.  In other words, the parties were respectively contending for positions at two opposite extremes.  The House of Lords had no difficulty in rejecting both arguments.  The true position was explained by Viscount Simonds at pages 460 to 461 in respect of the Princess’ descendant’s argument and at pages 462 to 463 in relation to the Crown’s argument:

“My Lords, the contention of the Attorney-General was, in the first place, met by the bald general proposition that where the enacting part of a statute is clear and unambiguous, it cannot be cut down by the preamble, and a large part of the time which the hearing of this case occupied was spent in discussing authorities which were said to support that proposition.  I wish at the outset to express my dissent from it, if it means that I cannot obtain assistance from the preamble in ascertaining the meaning of the relevant enacting part.  For words, and particularly general words, cannot be read in isolation : their colour and content are derived from their context.  So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari material, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.

…

Now, I do not suggest that it is impossible that words of this generality should be restricted by their context.  But if I may do so without adding to the number of conflicting generalizations, I would say that for such restriction a compelling reason must be found. … But where it is in the preamble that the reason for restriction is to be found, the difficulty is far greater.  For, as has so often been said, Parliament may well intend the remedy to extend beyond the immediate mischief: the single fact therefore that the enacting words are more general than the preamble would suggest is not enough.  Something more is needed, and here lies the heart of the problem.  On the one hand, the proposition can be accepted that ‘it is a settled rule that the preamble ‘cannot be made use of to control the enactments themselves ‘where they are expressed in clear and unambiguous terms.’  I quote the words of Chitty L.J., which were cordially approved by Lord Davey in Powell v Kempton Park Racecourse Co Ltd.  On the other hand, it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context.  That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble.  It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it.  Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.  To say, then, that you may not call in aid the preamble in order to create an ambiguity in effect means very little, and, with great respect to those who have from time to time invoked this rule, I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it.  And I do not propose to define that expression except negatively by saying (as I have said before) that it is not to be found merely in the fact that the enacting words go further than the preamble has indicated.  Still less can the preamble affect the meaning of the enacting words when its own meaning is in doubt.”

40.  Lord Normand put the position thus (at page 467):

“  When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described.  It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions.  The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts.  There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble.  Again, the preamble cannot be of much or any assistance in construing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act.  It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail.”

41.  Lord Somervell explained the law in this way (at pages 474 to 475):

“If, however, having read the Act as a whole, including the preamble, the enacting words clearly negative the construction which it is sought to support by the preamble, that is an end of it.

…

Preambles differ in their scope and consequently in the weight, if any, which they may have on one side or the other of a dispute.  There can be no rule.  If in an Act the preamble is a general and brief statement of the main purpose, it may well be of little, if any, value.  The Act may, as has been said, go beyond or, in some respects, fall short of the purpose so briefly stated.  Most Acts contain exceptions to their main purpose, on the meaning of which such a preamble would presumably throw no light.  On the other hand, some general and most local Acts have their limits set out in some detail.  I will not hazard an example, but there may well be cases in which a section, read with the preamble, may have a meaning different from that which it would have if there were no preamble.  A court will, of course, always bear in mind that a preamble is not an enacting provision, but I think it must have such weight as it can support in all contests as to construction.”

42.  If the preamble itself is ambiguous, it does not assist in the interpretation of the provisions contained in the operative part of the Act: per Lord Morton at page 471.

43.  See also Wacando v The Commonwealth (1981) 148 CLR 1, 15-16 (Gibbs CJ) and 23 (Mason J); Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1, 14, para 30 (Li CJ).

44.  In this regard, it should be noted that the so-called Padfield principle (see below) cannot be used to create an ambiguity in the meaning of the provisions that are being construed: cf R v Secretary of State for the Home Department, Ex parte Brind [1991] AC 696, 761E/F-G.

Provisions requiring interpretation

45.  It must be remembered that what is being construed is, specifically, section 8 of the Ordinance, regarding the Senate’s control and regulation of instruction in the University, and the similar provisions in paragraph 4(c) of Statute 14 governing the Senate’s power and duty to direct and regulate the instruction and teaching of the approved courses of study in the University.

46.  Leaving aside the applicant’s subsidiary argument based on the opening words ‘subject to this Ordinance and the Statutes’ and ‘subject to the Ordinance and Statutes’ respectively, the wordings of the provisions in question are straightforward.  They do not contain any restriction on the language of instruction which the Senate may direct to be adopted.  However, what is clear and unambiguous by merely looking at the enacting words may become unclear and ambiguous when the whole Act or Ordinance is read, particularly in its context, and indeed it has been suggested that the very nature of generality can create an ambiguity which needs clarification: Bowtell v Goldsbrough, Mort & Co Ltd (1906) 3 CLR 444, 457, per O’Connor J; Anne Winckel, The Contextual Role of a Preamble in Statutory Interpretation [1999] 23 Melb UL Rev 184, 187.

47.  Since whether an ambiguity exists depends on the context, and the context includes the preamble, I propose to look at the context including the preamble first, for the dual purposes of determining whether there is an ambiguity in the enacting words and of construing the words in their context.

Historical materials

48.  As regards the context, which is to be understood in its widest sense, and leaving aside the preamble for the time being and simply focusing on the history of the founding of the University and the making of the 1963 Ordinance and the 1976 Ordinance, it is a fair comment to make that all those involved, including the Government, the founders of the University, the experts retained to advise the Government and the constituent Colleges, as well as the general public, expected that the new University, when established, would use Chinese as its principal language of instruction.  As has been explained, there was a strong social need for such a University, so as to form the apex of education in Hong Kong for those who were taught and studied in Chinese, as opposed to English.  Indeed, the Chinese name of the University means, literally, The ‘Chinese language’ University of Hong Kong (the word Chinese (中文) means the Chinese language, literally, rather than the Chinese people).

49.  That, of course, must be a relevant background fact.  But the true question here is not what the expectation was.  The true issue is whether there was anything in the background facts to indicate that using Chinese as the principal language of instruction was not only an expectation, but a mandatory legal requirement binding on the University – and not only in 1963, or 1976, but for so long as the University shall exist, unless and until the same is amended by the legislature.

50.  In this regard, it is pertinent to note that despite the unanimous expectation that the University to be founded, or the newly founded University, would use Chinese as the principal language of instruction, one could not find in the historical materials placed before the Court any direct or specific mention that as a matter of law, Chinese must be and remain the principal language of instruction in the University, leaving aside the preambles to the 1963 Ordinance and the 1976 Ordinance for the time being.

51.  Thus, the very detailed Report of the Fulton Commission 1963 described the language of instruction of the new university to be established in the very first sentence in the Introduction contained in Part 1 of the Report as follows:

“The appointment of the Commission was the culmination of a series of steps taken in recent years to pave the way for the foundation in Hong Kong of a federal university in which the chief medium of instruction would be Chinese.”  (my emphasis)

52.  No doubt, one must not construe the Report as if it were a statute, and it was essentially written by academics, rather than lawyers.  But neither that sentence I quoted nor the contents of the detailed Report contained any explicit or direct mention, let alone discussion, on any proposed requirement that as a matter of law, the University must not use any language other than Chinese as its principal language of instruction, at any point of time.

53.  The same language was used by the Colonial Secretary in his speech given in the first reading of the University Bill in 1963 before the Legislative Council (‘a new university in which Chinese would be the principal medium of instruction’).

54.  The ‘Objects and Reasons’ for the Bill stated that ‘the report of the Fulton Commission, 1963, recommended the establishment of a federal type Chinese university in which the principal language of instruction should be Chinese’.  We have just seen what the Introduction in the Report of the Fulton Commission 1963 had said about using Chinese as the principal language of instruction.  In any event, the Objects and Reasons did not mention that this was to be a legal requirement.

55.  In his report given for the first six years of operation of the new University, the Vice-Chancellor, who was not a lawyer, described the use of Chinese as ‘the’, and at another point, ‘a’ principal language of instruction in the University (pp 1 and 6).  The Vice-Chancellor did not in his report mention at all that it was a legal requirement that Chinese must be used as the principal language of instruction.

56.  The Final Report of the Working Party on Education, Policy and University Structure, the Chinese University of Hong Kong, dated 12 July 1975, which ultimately led to the enactment of the Ordinance in 1976, stated in paragraph 1.59 that ‘to be true to the original ideals which led to its establishment, the University should no doubt use Chinese as the principal language of instruction …’.  No mandatory legal requirement to use Chinese was mentioned in the report.

The Preamble

57.  I now move on to the preamble, which forms part of the context, but does not represent the entire context.  For all practical purposes, the relevant parts in the two preambles to the two Ordinances are identical and may be treated as one.  Put another way, the 1976 preamble, insofar as it is relevant to the present construction exercise, must be regarded as having come into being back in 1963.

58.  Mr Chang submits that the facts that the language prescription precedes the rest of the sentence concerning the three missions or tasks (and is not thrown into the list as if it were just another one of the many tasks or roles assigned to the University) is of significance.  What it shows, counsel submits, is that ‘it is a key clause which links the identity of the University with its remit to use what the founding Ordinance has prescribed to be its principal language of instruction and applies that to all three roles as well as linking the past with the present and the present with the future.’

59.  Notwithstanding counsel’s eloquence, it is immediately noticeable that save for paragraph (e) in the preamble, all other matters in the preamble are essentially descriptive and historical in nature.  Paragraph (e) is in the form of a declaration.  But that in itself does not necessarily mean that it is meant to have legal or prescriptive effect in the sense that it is intended to cut down the generality of the provisions under interpretation.  The first thing to note about paragraph (e) is that the principal language of instruction is stated between commas in English and within brackets in Chinese.  The thrust of paragraph (e) is, rather, to set out the three tasks or missions of the University: first, to assist in the preservation, dissemination, communication and increase in knowledge; second, to provide regular courses of instruction in the humanities, the sciences and other branches of learning of a standard required and expected of a university of the highest standing; and third, to stimulate the intellectual and cultural development of Hong Kong and thereby to assist in promoting its economic and social welfare.

60.  These missions or tasks of the University are, by nature, matters not suitable or susceptible to legal prescription or regulation.  They are the aspirational missions of the University.  Thus, for instance, the provision of regular courses of instruction of a standard ‘required and expected of a university of the highest standing’ may only be achieved by stages, and in the long run.  And more importantly, it may only be achieved by the efforts of all concerned, rather than by legal prescription.

61.  It is noteworthy that in the draft Ordinance included in the Report of the Fulton Commission 1963, the three missions were actually set out in s 6 as the objects and functions of the University.  However, when the 1963 Ordinance was passed, they appeared as the preamble to the Ordinance.  This confirms that the three missions were not intended to have legal effort.  As noted, the draft Ordinance did not mention using Chinese as the principal language at all.  In the 1963 Ordinance, it appeared as part of the preamble where the three missions were set out.

62.  All this suggests that using Chinese as the principal language of instruction is also an aspirational target, rather than a mandatory legal requirement, depending on whether the use of Chinese as the principal language of instruction at any particular point of time is actually conducive to the attainment of the three aspirational missions. 

Shall be (為)

63.  As regards ‘in which the principal language of instruction shall be Chinese’, this little phrase, found in the opening part of paragraph (e) in the preamble, does not form one of the missions or tasks of the University.  It is no doubt expressed, prima facie, in a mandatory form.  But ‘shall’ or ‘shall be’ may, depending on the context, mean something less than mandatory or legally prescriptive.  It may be directory, enabling, empowering, permissive or descriptive in nature or meaning.  It all depends on the context.  See for instance, Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, 698H (directory); Van Huyssteen NO v Minister of Environmental Affairs and Tourism [1995] 4 LRC 340, 356 (directory, empowering, permissive); Re Davis (1947) 75 CLR 409, 418-419 (facultative).

64.  So does the Chinese rendering.  The use of the character ‘為’ may connote a mandatory requirement, just as it may connote a descriptive or permissive meaning.  Mr Chang has in his written submission (Appendix 2) refers to many instances where the character has been used in the mandatory sense.  Again, it depends on the context. 

65.  So in this sense, I do not agree that there is a real inconsistency between the Chinese version and the English one.  Rather, in my view, the real point is that regardless of whether the Chinese or English version is relied on, in relation to any apparent inconsistency between which the Court is guided by section 10B(ii) and (iii) of the Interpretation and General Clauses Ordinance (Cap 1), at the lowest, the meaning of the phrase in paragraph (e) of the preamble is in itself ambiguous.  That is to say, there is an ambiguity in the phrase ‘in which the principal language of instruction shall be Chinese’ in that it is not at all free from doubt whether it is meant to be a mandatory requirement or not.  This alone is a reason for saying that the preamble simply cannot be used as an aid to construe the provisions in question.

Other points

66.  The fact that it is not at all easy to tell whether Chinese is indeed used as the ‘principal’ language of instruction in the University in the absence of a clear statutory definition, which is conspicuous by its absence in the Ordinance, is a further indication that no prescriptive force is intended.

67.  Another obvious fact is that neither the phrase relied on by the applicant or the three tasks or missions set out in paragraph (e) of the preamble are actually contained in the operative part of the Ordinance.  A simple yet highly significant point to make is that if the legislature really intended that any of these matters should have prescriptive effect, it would have been simple enough for them to be included in the operative part of the Ordinance.  They were not.

Colonial Hong Kong and the uncertainty of future

68.  Moving outside the preamble and considering matters in a wider perspective, it is not particularly easy to accept that back in the late 1950s and early 1960s when the idea of founding a new university in Hong Kong was first mooted, then agreed upon and eventually brought to realisation, it was the intention of the then Colonial Government and legislature that not only would the new university use Chinese as the principal language of instruction as expected, but that it must do so forever until and unless the legislature should see fit to amend the relevant provisions.  I say it is a slightly startling proposition to suggest because one must not forget that one is talking about the late 50s and the early 60s when Hong Kong was still very much a British colony, where English was the only official language (Chinese did not become an official language until 1974).  The only university then was the University of Hong Kong, a typical colonial university using English as its medium of instruction, research as well as all other official and social businesses and functions.

69.  According to the historical materials, students who were educated in Chinese were stuck.  For political and other considerations, they could not and did not wish to return to the Mainland to pursue tertiary education.  The University of Hong Kong was out of their reach.  As pointed out by Professor Ng in her book, it was recognised by the Government that ‘antagonism … might result from discontented teachers and students of Chinese middle schools if their frustrations were not properly addressed’.  Furthermore, something had to be done to address the ‘grievance’ felt by the Chinese middle schools at the then position whereby Government provided huge amounts of money as subvention to the University of Hong Kong which only catered for the graduates of the Anglo-Chinese schools, and made little or no provision for university courses which would cater for the graduates of the Chinese middle schools.

70.  Viewed in that light, it was perfectly understandable then that the Colonial Government of the day would think it wise and appropriate to consider founding a new university, in which the principal language of instruction would be Chinese, to address the grievances and anticipated antagonism.  And as I have mentioned more than once, everybody involved at the time, no doubt, expected, quite rightly, that the new university to be founded would use Chinese as the principal language of instruction.

71.  And no doubt, there were other contributing factors and reasons for the Government’s determination to set up a second university in Hong Kong which would use Chinese as its principal language of instruction, even though Chinese was not an official language in the colony.

72.  All this was, as I say, easily understandable.  But it would be a quantum leap, in my judgment, to infer from all this that the Government and the legislature had intended to impose a legal requirement on the part of the University to use Chinese as its principal language of instruction, effectively forever and ever – as per the applicant’s submission, unless and until the legislation should see fit to amend the provisions in question.  I see no logic or reason for the imposition of such a legal obligation.  After all, all the stakeholders – Government, academics, students and the public – were expecting, for good reasons, the University to use Chinese as its principal language of instruction.  Not only was there no need to impose a legal duty to that effect, it would lead to a very odd situation as the University would be legally obliged to use a language, which was not even an official language in the colony at the time, even if circumstances should have so changed in future that the original need for the provision of tertiary education in the colony in Chinese should no longer be present.

73.  The uncertainty of the future is not a new subject.  The Report of the Fulton Commission 1963 said it well in paragraph 64 (at page 25):

“64.  … As for Hong Kong and the proposed new University we are unable – even if we felt it our duty – to prescribe in detail the tasks ahead.  The new University will not be sending its graduates out into the world in substantial numbers until the second half of the present decade.  The demands which will be made on it to provide for Hong Kong special kinds of services through the man and women who have graduated there in the 1970s, 1980s and onwards have not been sufficiently indicated to enable us to give clear guidance for the future.  We remark only that much thought will have to be given over the next few years to the variety of needs which the University will be called upon to satisfy in the last quarter of this century: bearing in mind that even the first graduates of the new University will be still engaged in their professional service during the first decade of the XXI century.  The measure of what is needed is the future – not the present, still less the past.”  (emphasis added)

74.  Thus, for instance, what if the universities on the Mainland should become accessible and attractive to the local Chinese students again after the founding of the University?  And what if the demand for university places by graduates of Anglo-Chinese schools should greatly exceed that by graduates of Chinese middle schools (which did become the case, as per the evidence, by the early 1970s)?  Why should the Colonial Government and legislature want to tie the hands of the University legally by mandating Chinese as the principal language of instruction even in those circumstances?  Amendment is always an answer but is never a good one.  Back in the 1950s and 1960s, 1997 was not even on the horizon, the making of Chinese an official language was still 11 years away (counting from 1963), and Hong Kong was still very much a colony.  Why should Hong Kong be left with a second university which could only use Chinese (which was not even an official language in the colony) as its principal language of instruction even if the circumstances calling for the setting up of a Chinese university in the first place should become changed after its founding?

75.  It is therefore more attractive to read ‘shall be’ not as mandatory but, as enabling, empowering or permissive in nature.  Indeed, the Report of the Fulton Commission 1963 stressed ‘the need for the maximum flexibility in planning the whole programme of university development’ (paragraph 70) when discussing the criteria that could guide policies on university development, namely, what can a given country or community afford to spend on it? what proportion of young people in each age group are to be given higher education at the university? and what is the country’s need for manpower which has passed through the system of higher education? (paragraph 65).  The report recognised that these were important questions, the answers to which would need to be worked out step-by-step in future, and thus the need for adaptation of the programme of university development in the light of the answer to these questions, and ‘maximum flexibility’.

76.  Indeed, one of the three named tasks or missions of the university is to ‘assist in promoting [Hong Kong’s] economic and social welfare’, and thus the needs and requirements of the society cannot be ignored.  The establishment of the University itself was in itself a response to the needs of the society at the particular point of time in history.  The language of instruction is, quite plainly, a factor which may affect how flexible the University can respond to the needs and requirements of the society as well as what it can afford, in terms of financial and other manpower input, in running and developing a university.  I have already mentioned the example of the universities on the Mainland becoming accessible and attractive to local Chinese students again, as changing the needs of the society for a second Chinese university; it illustrates that in such a changed environment, the University would need to reposition itself in Hong Kong, regionally as well as internationally, not only in order to remain relevant and competitive, but more importantly also, to fulfil its missions or tasks, namely to provide courses of instructions ‘of a standard required and expected of a university of the highest standing’, and to assist in promoting Hong Kong’s economic and social welfare.

77.  I think it is unfair to those who were instrumental in the founding of the University and the setting up of its constitutional framework to suggest that they did not have in mind considerations of this sort, the long term well-being and development of the University, as well as the wider interests of Hong Kong as a whole, when they drew up the blueprint for the new university, but were content to leave anything that was beyond the immediate needs of the society, the scholars and the students at the time to be dealt with by way of legislative amendments to the Ordinance and Statutes of the University in future.

78.  It has been stressed in the materials before the Court that the Ordinance is a framework Ordinance.  It is a framework, a skeletal structure, based on which the University can grow, develop and adapt to the needs and circumstances of the times.  It provides a framework, not a strait jacket.

79.  In the first reading of the Chinese University of Hong Kong Bill 1963, the Colonial Secretary pointed out that legislation alone cannot create a university:

“A university, even after its framework is determined by Ordinance and Statutes, is subject to constant growth, development and change.  In this continuing process the teachers and students, who come together to form the university, make a vital contribution; and so does the society whose complex and diverse needs the university must, in the last analysis, endeavour to serve.”

80.  In this short quotation, the facts that the Ordinance and Statutes only formed the framework based on which the University was to be established, that the University would be subject to ‘constant growth, development and change’, and that in the final analysis, the University must endeavour to serve the society’s complex and diverse needs – which, by definition, are bound to change over time, were highlighted.  It is difficult to see how an inflexible adherence to using Chinese as the principal language of instruction can be compatible with these important matters.

81.  The Final Report of the Working Party 1975, which led to the passing of the 1976 Ordinance to replace the original 1963 Ordinance, mentioned that to be true to the ‘original ideals’ which led to its establishment, the University should no doubt use Chinese as the principal language of instruction, something which, the Report noted, the University had already shown effort and determination in putting into practice with encouraging results (paragraph 1.59).  It should be noted that the Report did not refer to using Chinese as the principal language of instruction as a legal requirement, but rather as one of the ‘original ideals’ which led to the University’s establishment, or something that was closely connected with or related to the ‘original ideals’.

82.  As I have stressed, the crucial question is not whether those involved in founding the University, Government officials, educators, scholars and students alike, were expecting anything other than Chinese being used as the principal language of instruction.  That is not the issue.  The issue, so far as the original legislative intent is concerned, is whether the Colonial Government and legislature ever intended to impose on the University a legal duty to use Chinese as the principal language of instruction forever in the future, save for any amendment by the legislature.  This issue, which is the real issue, can stand well with whatever strong feelings – nationalistic, cultural, educational or emotional, that one may have about using Chinese as the principal language of instruction in the University, whether then and now.  In my view, back in the 60s and 70s, there was simply no doubt that Chinese would be used as the principal language and there was neither need nor wisdom to turn that into a legal obligation.

Senate as the body exercising the power to choose

83.  Moreover, one must not forget what is being construed is section 8(a) of the Ordinance and paragraph 4(c) of Statute 14, which essentially give the Senate the power and duty to control and direct the language of instruction.  I have already outlined the composition of the Senate.  It is difficult to think of another body or group of persons who would be more suitable to be given the power and control over, amongst other things, the language of instruction.  It comprises a broad representation of the University.  The representatives involved are directly or closely involved in the instruction at the University and they are the people who would know best what language of instruction should be used at the University.  Moreover, they are also the people responsible for the long-term planning and future of the University in terms of its instruction, education and research.  They are therefore in a good position to bear in mind the University’s immediate needs as well as its long-term requirements, insofar as the language of instruction has a bearing on them.

84.  Moreover, by reason of their offices in the University, they are the persons who can be entrusted with the high responsibility for upholding the ideals, traditions and characteristics of the University, balancing the same with the present as well as the future needs and requirements of the University for its continuing development and growth.  Needless to say, this group of people does not do its work unsupervised.  Everything that it does is subject to review by the Council, which is the governing and executive body of the University.

85.  The point here is that so far as legislative intent is concerned, why should the legislature think it better and wiser to impose an inflexible rule on the language of instruction (namely, using Chinese as the principal language of instruction – come what may) rather than leaving it to the Senate, always subject to review by the Council, to decide what the language or languages of instruction should be at any point of time, in response to the needs and requirements not only of the University, but that of the society also, at that point of time?

86.  The importance of the language of instruction cannot be over-emphasised.  It is important to the achievement of the missions and tasks of the University as set out in the preamble.  It is, for obvious reasons, important to recruitment of teaching staff, as it is material to student intake, whether local or international.  It has an important bearing on the efforts of the University in terms of its internationalisation policy (see below) and its gaining of international standing and status.  It affects the competitiveness of the University and people’s perception of the University (whether locally or internationally).  The ability to use the most appropriate language of instruction is of particular importance in view of increasing globalisation.

87.  Both the Senate and the Council are in a very good position to determine the language or languages of instruction in order to deal with these matters.  Apart from the Council and Senate, the University Grant Committee, which essentially controls the amount of Government subsidies to the universities in Hong Kong, will have a very important say in the matter.  But this will only be so if the legislation is not interpreted in such a way as to mandate the use of Chinese as the principal language of instruction in the University in all circumstances and at all times. 

88.  Needless to say, the Government of the HKSAR (particularly as provided in art 136 of the Basic Law – see below), the legislature and ultimately, the society, they all being stakeholders, would also act as checks and balances on the Senate and Council on whatever decision they may want to make on the principal language of instruction.

89.  The question therefore is: why should an inflexible legal requirement be placed on top of all these checks and balances? 

Principal language of instruction and the three missions

90.  Mr Chang, in his eloquent argument, has sought to make the point that the language of instruction cannot affect the achievement of the University’s missions and tasks.  He cites the examples of well-known universities in the United Kingdom to illustrate his point that these universities do not need to teach in any language other than the language of that country, in order to be and remain top universities in the world. 

91.  Whilst acknowledging the greatness of the Chinese language and its unquestionable contribution to civilisation in general, and recognising the increasing importance of the Chinese language in the present day and the future to come, one must bear in mind the very basic fact that English is not only the national language of the United Kingdom; it is, quite beyond controversy, an international language.  Therefore, the examples of the great universities in the United Kingdom are simply inapt for our present discussion.

92.  Moreover, one must not confuse the real issue here.  The lack of a legal requirement mandating the University to use Chinese as the principal language of instruction at all times and under all circumstances does not amount to the University giving up Chinese as its principal language of instruction automatically.  Rejecting Mr Chang’s argument simply means that the University has a choice.  That choice would still have to be made wisely and responsibly.  Certainly the Court is not suggesting that the University should use English as its principal language of instruction, or is suggesting that unless it does so, it can never achieve the three missions that have been set out in the preamble to the Ordinance.  That must be a matter of judgment for the University, and the question is whether the choice is legally open to the University.  Any debates on the principal language or languages to adopt must take place elsewhere, not in the courts, where constitutionally and institutionary, only legal debates are entertained.

Constitutional concerns – institutional autonomy and academic freedom

93.  Art 137 of the Basic Law guarantees that ‘educational institutions of all kinds may retain their autonomy and enjoy academic freedom’.  I have had an occasion to comment on the autonomy of educational institutions and academic freedom in another context in Catholic Diocese of Hong Kong v Secretary for Justice [2007] 4 HKLRD 483, 537 to 540.  For the reasons explained in that case, institutional autonomy and academic freedom are not absolute.  The Basic Law has specifically provided in art 136 a role, an important one indeed, to be played by the Government of the Hong Kong Special Administrative Region, in formulating policies on the development and improvement of education.  Those policies include, amongst other things, policies regarding the language of instruction.

94.  There is no dispute that art 136 only applies to the Government of the HKSAR.  Nor is there any dispute that the Government of the HKSAR has not made any specific policy about the language of instruction at the University.  Therefore in that sense, art 136 is quite irrelevant to our present consideration.  But insofar as Mr Chang, on behalf of the applicant, seeks to argue that because art 136 empowers the Government of the HKSAR to deal with the language of instruction by way of policy, the institutional autonomy and academic freedom guaranteed under art 137 do not encompass the language of instruction at a university, I do not agree.  To the contrary, in my view, the language of instruction lies at the core of institutional autonomy and academic freedom.

95.  Insofar as Mr Chang argues that the language of instruction is not merely a tools or means to education and the State has a legitimate interest in it, I have no quarrel with it.  The Malaysian case that counsel relies on, Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356, provides an interesting illustration of how important the language of instruction may be to shaping a country’s national identity and unity.

96.  As, on the facts, art 136 is not engaged, what one is solely concerned with is art 137 of the Basic Law and its relationship to the 1963 and 1976 Ordinances, both pre-1997 legislation.  In this regard, Lord Lester has very appropriately reminded the Court that in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 610-611 (paras 78 to 79), the Court of Final Appeal clearly stated that the courts have the implied power and obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law– consistent.  This reflects the common law principle of legality which applies, even in the absence of an ambiguity, as a presumption of general application, and which operates as a constitutional principle to construe, so far as possible, legislation in such a way as to conform to fundamental or basic rights: R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115, 130D to G (per Lord Steyn).

97.  Construing the provisions in the Ordinance and the Statute in such a way as to impose on the University a mandatory obligation to use Chinese as its principal language of instruction would, quite plainly, trespass on the institutional autonomy and academic freedom of the University and its members, and thus be inconsistent with the rights guaranteed under art 137 of the Basic Law, in a situation where the Government of the HKSAR has not formulated any policy on language of instruction as provided in art 136 of the Basic Law.  There is force in Lord Lester’s submission that such a mandatory requirement would be an excessive and disproportionate intrusion into the University’s institutional autonomy and the academic freedom enjoyed by its members.  I find this to be a material factor against the construction put forward by the applicant.

Updating construction

98.  Another relevant principle of construction is the one discussed at some length in Bennion, Statutory Interpretation (5^th ed)889 et seq (section 288), which applies to an ‘ongoing’ Act or Ordinance.  In short, it is presumed that Parliament intends the court to apply to an ongoing Act, as opposed to a fixed-time Act, which is comparatively rare, a construction that ‘continuously updates its wording to allow for changes since the Act was initially framed’.  While it remains law, it is to be treated as ‘always speaking’.  This means that ‘in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law’.  There is of course a limit to how far an updating construction can go.  As Bennion has pointed out (page 914), the construction does not permit the alteration of the meaning of the words used in the enactment in ways which do not fall within the principles originally envisaged by the enactment.  See Macdonald v Advocate General for Scotland [2004] 1 All ER 339 (‘sex discrimination’ cannot be interpreted to mean ‘sexual orientation discrimination’).

99.  There cannot be any dispute that the situation in 21^st century Hong Kong is very different from that prevailing in the late 1950s when the need for a second university, where Chinese would be used as the principal language of instruction, was increasingly felt, that in the 1960s when the first Ordinance was passed and the University set up, or that in the 1970s when matters were reviewed, leading to the passing of the second Ordinance.  The intervening years have witnessed tremendous if not fundamental changes not only in Hong Kong, but also in the Mainland and indeed the whole world.  Everything has moved on.  The Ordinance, which provides the framework of the University not only for its establishment but also continued development and growth, must be given an updating interpretation, an interpretation that makes sense in the first decade of the 21^st century and will continue to make sense in the many years to come.  As I observed in Catholic Diocese of Hong Kong, supra, at page 515 (para 119),

“119.  Education, and thus educational policies and educational system, are matters that cannot remain static in any society, particularly in the fast-changing modern world.  They must develop and improve with the times.  … in the field of education, educational policies and educational system, sufficient flexibility and leeway are required to allow for development and change with a view to their improvement and strengthening; otherwise, the whole educational system would be locked into a ‘reliquary’: cf Lau Kwok Fai & Others v Secretary for Justice, (unrep., HCAL No 177 of 2002, [2003] HKEC 711) para.68; Introduction to the Basic Law of the Hong Kong Special Administrative Region (2000) at pp 636-637.”

100.  The University has developed and evolved over the years so that it is a substantially different institution from what it was in the early years both in terms of student population and of the courses it offered, with faculties such as engineering, law and medicine added in the interim, which all teach principally in English (at least so far as lectures are concerned).  Moreover, in recent years, the University has adopted the ‘fundamental’ policy of internationalisation, so as to broaden the student mix of non-local undergraduates.  It is a policy not subject to any challenge by the applicant in these proceedings.  The intention to recruit international students, according to the evidence, involves the wish to provide a learning environment that is international in character.  Needless to say, the language of instruction is an important issue in the implementation of the internationalisation policy.

101.  The University has stressed in the evidence its long history of bilingualism almost from day one.  That is not disputed by the applicant.  However, there can be no dispute, and the University does not deny it, that, at least until recent years, Chinese was used as the principal language of instruction in the University.  Thus the University’s long-standing tradition of bilingualism does not, by itself, answer the applicant’s arguments based on statutory construction and the Padfield principle (see below).  But the tradition of bilingualism is evidence of something more fundamental.  As submitted by Lord Lester, central to the philosophy of the University is the commitment to the integration of Chinese and Western cultures.  That this larger mission to bring east and west closer together is befitting of a university established in Hong Kong, itself an international city where cultures of the east and west meet.  The University is, on the materials before the Court, never meant to be just another Mainland university.  Just like the difference between the Mainland and Hong Kong, the University has always been meant to be different from a Mainland university.  The choice of the language of instruction is of course an important matter.  But in my view, it is never meant to be the only, or the single most important matter that persuaded and guided the Government and legislature of the day to found the University, in conjunction with the University’s individual founding fathers.

102.  In fact, from the very beginning, the University was infused with a strong international character, not only because of the Hong Kong British setting, but also because many scholars, educational missions, foundations, and institutions from aboard had helped in many ways in the development of the Colleges towards university status: Alice Ng, op cit., at page 33.  As the author pointed out, the University was established with a firm foundation able to face the challenge of meeting the needs of the cross-cultural and dynamic society of Hong Kong, it being ‘[c]ommitted to the development and enrichment of Chinese culture, and to the integration of Chinese and Western knowledge’ (ibid).  An ability to choose and use, with maximum flexibility, the language of instruction that would best serve these aims is essential to the University’s continued success and growth.

103.  There is no question of doing violence to any words used in the Ordinance by adopting such an updating construction.  Unlike Macdonald which Mr Chang heavily relies on, I am not changing the meaning of ‘sex discrimination’ to discrimination based on ‘sexual orientation’.  No violence is done to the words ‘shall be’ or ‘為’ in paragraph (e) of the preamble.  As discussed earlier, the words, whether in English or Chinese, can connote either a mandatory requirement or a directory/permissive/enabling/descriptive meaning, which would stand well with the University’s interpretation.

‘Subject to’

104.  Mr Chang relies on the ‘subject to’ wording in section 8 of the Ordinance to say that since the preamble forms part of the Ordinance, section 8 is subject to the preamble, and therefore the power of the Senate to direct the language of instruction is subject to what has been set out in the preamble regarding the principal language of instruction.

105.  I do not think this argument adds anything to what has been discussed above.  Although the preamble forms part of the Ordinance, it is not contained in the operative part of the Ordinance and does not in itself have any legal force.  In any event, the argument begs the question of the correct understanding of paragraph (e) in the preamble.

Conclusion on statutory construction

106.  In conclusion, I find no ambiguity in the general power given to the Senate in section 8(a) of the Ordinance and paragraph 4(c) of Statute 14.  As a matter of construction, there is no scope for applying paragraph (e) in the preamble to cut down the scope of power given under section 8(a) and paragraph 4(c).  As for interpreting those provisions in its context, I have fully borne in mind the entire context, including but not limited to paragraph (e) in the preamble.  I have come to the firm view that ‘shall be’ in paragraph (e) is not mandatory but enabling, empowering or permissive in meaning or nature.  Furthermore, when properly construed, the power given under section 8(a) and paragraph 4(c) to the Senate, subject to review by the Council, to control and direct the language of instruction, is not restricted by any legal requirement that Chinese must be or remain the principal language of instruction.  What has happened in the past, and the reasons for such practice, form, amongst other things, an important part of the context to bear in mind.  But in themselves, they do not dictate how the provisions should be interpreted as a matter of law.

107.  In short, I reject Mr Chang’s first argument based on statutory construction, including his subsidiary argument based on the ‘subject to’ wording.

Padfield argument

108.  I now move on to deal with the Padfield argument.

109.  In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, the statute gave the Minister an apparently unfettered discretion to appoint a committee of investigation in relation to the operation of a milk marketing scheme.  The Minister refused to make an appointment to inquire into a complaint.  The House of Lords held that Parliament conferred a discretion on the Minister so that it could be used to promote the policy and objects of the Act which were to be determined by the construction of the Act.  The Minister’s discretion was not unlimited and since the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere.  At page 1030, Lord Reid set out the applicable principles:

“It is implicit in the argument for the Minister that there are only two possible interpretations of this provision – either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case.  I do not think that is right.  Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court.  In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.  So it is necessary first to construe the Act.”

110.  In Oliver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd [2000] Ch 12, 37A/B-B Laws LJ explained that:

‘the underlying principle rests on the rule of law; it is that the exercise of statutory power given by the legislature must be condemned as arbitral and capricious if it is done for a purpose which the legislature did not intend, and for that reason must be taken to be unauthorised.’ 

111.  The applicant’s argument based on the Padfield principle, as what Lord Reid said has since been conveniently called, can be briefly stated.  It is the policy and object of the Ordinance that the University shall use Chinese as the principal language of instruction.  The discretion of the Senate to determine the language of instruction in the University must therefore be exercised so as to promote that policy and object of the Ordinance.  The Senate cannot so use its discretion as to thwart or run counter to that policy and object.

112.  What Mr Chang cannot achieve through the front door of statutory interpretation, he seeks to get in through the backdoor of Padfield.

113.  I do not accept the argument.

114.  First, I do not accept that it is the policy and object of the Ordinance that the University shall use Chinese as the principal language at all times and under all circumstances.  This goes back to the lengthy discussion above regarding the true meaning of paragraph (e) in the preamble, particularly whether it is mandatory in nature.

115.  Secondly, the argument of the applicant assumes that there is only one policy and object of the Ordinance, ie that relating to the principal language of instruction.  I do not agree with this simplistic approach.  Even the preamble tells its reader that the missions and tasks of the University are about something in addition to or other than the principal language of instruction. 

116.  More importantly, the blind and inflexible use of Chinese as the principal language of instruction in the University may not necessarily be conducive to the achievement of the three missions or tasks, in all circumstances and at all times.  It all depends on the facts and circumstances, and I do not imagine anybody can be dogmatic about this sort of matters.  Whether at a particular point of time and under a particular set of circumstances, using Chinese as the principal language of instruction will help to promote the achievement of the three tasks or will have the effect of frustrating or defeating the attaining of those three tasks, is quite another matter, which is different from Mr Chang’s argument under discussion. 

117.  The three tasks refer to the preservation, dissemination, communication and increase in knowledge, the provision of courses of instruction of a standard required and expected of a university of the highest standing, and assisting in promoting Hong Kong’s economic and social welfare.  Under the Padfield principle, these are matters that the exercise of the Senate’s discretion should seek to promote.  In a fast changing world, one simply cannot say that the inflexible use of Chinese as the principal language of instruction in the University must be consistent with the promotion and attainment of these tasks.

118.  Lord Lester submits that the main object and purpose of the 1963 and 1976 Ordinances, to be gathered from the language of the legislation, history and context, was to establish and continue a Chinese University of Hong Kong within a framework which would enable the University to seek to fulfil the three aspirational tasks or missions in paragraph (e) of the preamble and, insofar as it sees fit, to use Chinese as the medium of instruction to achieve them.  It was not the object and policy of the Ordinance to place the University in a linguistic strait jacket which would inhibit the achievement of those aspirational aims.  I agree.

119.  In their Report, the Committee on Bilingualism highlighted the importance of and the efforts to be made towards caring for the Chinese language and promotion of Chinese culture.  In my view, this is a legitimate way of expressing, in contemporary terms, the policy and object of the Ordinance insofar as the use of Chinese for instruction purposes in the University is concerned, regard having had to the fact that over the years many of the historical reasons for using Chinese as the principal language of instruction have diminished in significance if not totally gone and the requirement to give the Ordinance an updating construction.  Moreover, to put matters in context, the primary policy and object of the Ordinance must be and remain the attainment of the three aspirational missions or tasks of the University.  Balancing these objects or aims in light of contemporary circumstances does not raise any Padfield question of failing to promote or even thwarting or running counter to the Ordinance’s policy and objects.  Rather, it requires wisdom and judgment, foresight as well as courage.  It is a task which the Ordinance has entrusted to the Senate, and subject to standard administrative law controls such as Wednesbury unreasonableness, it is a matter that the courts do not interfere with (see below). 

120.  For the same reasons, I also reject the applicant’s argument that by ‘receiving’ the Report and setting up a standing committee to implement the recommendation in the Report, the Senate has contravened the Padfield principle by acting not to promote but to frustrate the policy and objects of the Ordinance.

121.  For all these reasons, I do not accept Mr Chang’s arguments based on the Padfield principle.

Wednesbury unreasonableness and illegality

122.  Mr Chang also relies on Wednesbury unreasonableness (insofar as it is treated as separate from and not inclusive of the Padfield principle) and illegality.

123.  This can be disposed of shortly.  So far as Wednesbury unreasonableness is concerned, there is simply nothing in the materials put before the Court to entitle it to interfere with the collective decision of the Senate.  The subject matter in question is the language of instruction in the University.  It is an area largely falling within the special knowledge of professionals and those in the know.  What is involved is a typical discretionary area of judgment, which the courts do not lightly intrude into: R v Director of Public Prosecution, Ex p Kebilene [2000] 2 AC 326, 380E-381E; see also de Smith’s Judicial Review (6^th ed) paras 1-030 to 1-036.

124.  Whilst reasonable men may differ on the right answer, and indeed may do so passionately, the Ordinance has given the Senate the power and responsibility to decide on the question of instruction, including the language of instruction, and the Senate’s view must be entitled to due respect.  The Court must not allow itself to usurp the role and function of the Senate and run the University on its behalf.  Whether the present decision under attack turns out to be one of foresight and wisdom, or otherwise, is not in issue, in these court proceedings.

125.  As has been described, the Committee has in its Report given due consideration to caring for the Chinese language and promotion of Chinese culture.  It has not failed to take into account any relevant consideration in its deliberation and decision-making process.

126.  I find nothing in the recommendation of the Committee on Bilingualism that is unreasonable in the Wednesbury sense.

127.  I do not find the reference to ‘the founding philosophy of placing equal emphasis on Chinese and English’ in the terms of reference of the Committee of Bilingualism to be incompatible or inconsistent with the policy and objects behind the Ordinance.  Once paragraph (e) in the preamble is understood in a permissive or enabling sense, in the light of English being the only official language in the colony at the time, one can understand immediately the reference to placing equal emphasis on Chinese and English as referring to the raised status of Chinese in Hong Kong at the time to that of the only official language of the colony, namely English, so far as instruction in the University was concerned.  Understood in that sense, there is nothing wrong with that reference.

128.  As regards illegality, it is merely a repeat of the applicant’s argument on statutory construction, which I have already rejected.  No question of illegality under the administrative law arises.

Outcome

129.  The application for judicial review therefore fails.  There is no question of the Court making any declaration in favour of the applicant. 

130.  So far as the University is concerned, I believe what I have said relating to statutory construction and the application of the Padfield principle is sufficient to guide the University in its future conduct.  No breach is involved so far as the application of the Padfield principle is concerned.  There is simply no justification for making any declaration to clarify the duty of the University under the Padfield principle, which the Senate has not infringed.

131.  In those circumstances, the application for judicial review must be dismissed, and I so order. 

132.  I also make an order nisi that the applicant pay to the respondent the costs of these proceedings, including all costs previously reserved, to be taxed if not agreed.  I certify for two counsel.  I also order that the applicant’s own costs be taxed in accordance with the Legal Aid (Scale of Fees) Regulations (Cap 91).

133.  It only remains for me to thank counsel on both sides for their assistance.