LAM YUET MEI v. PERMANENT SECRETARY FOR EDUCATION AND MANPOWER OF THE EDUCATION AND MANPOWER BUREAU

HCAL36/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 36 OF 2004

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J U D G M E N T

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1. In these proceedings, the applicant applies to judicial review two decisions of the Permanent Secretary for Education and Manpower ("the Permanent Secretary") as follows:

(1) The decision made in July 2002 removing the name of Kin Tak Public School (建德公立學校) ("the School") from the Primary One Admission ("POA") School List for the 2003/04 school year thereby terminating the School's right to recruit primary one students.

(2) The decision made on 10 December 2003 to cease to provide grants to the School with effect from 1 September 2004.

2. The applicant challenges the first decision on the ground that there had been no or no proper consultation before it was made. As for the second decision, the challenge is made under the doctrine of substantive legitimate expectation.

I. THE BACKGROUND

(1) The School

3. The School is a rural school situated at Lin Tong Mei Village (蓮塘尾村) in Sheung Shui, New Territories. According to the applicant, it is some 6 km from the town centre of Sheung Shui, being separated by a golf course. The no. 77K bus (operating at 20 minutes interval) and no.57K mini bus (operating at 30 minutes interval) pass by the village. It takes 10 minutes to travel from the village to the town centre by car.

4. The School was built in 1938. It is a government aided primary school. In the 1960s and 1970s, it operated 12 primary classes with about 560 students. In the 1980s, with changes in the general demographic structure of Hong Kong and that of Northern New Territories in particular, the number of students in the School had declined. In 1989, it became a whole day school with six primary classes.

5. Owing to insufficient number of student intake, the School had in the school years 1998/99, 1999/00, 2000/01 and 20001/02 operated a semi-class (i.e. a class of half the size of a full class) of primary one. In the school year of 2001/02, with the approval of the then Education Department, it operated a combined class for its primary one and primary two students.

6. In the school year of 2002/03, it did not have any primary one class because there was insufficient number of student intake and no government grant was allocated for operating primary one class. Since then, it has become a school not running a full curriculum.

7. In the school year of 2003/04, the School also did not operate any primary one class. There was no primary two class. There was one combined class for primary three and primary four, one class of primary five and one class of primary six. With the graduation of the 17 primary six students in July 2004, the School presently has 18 students. In the coming school year of 2004/05, ten of them will be in primary six, three in primary five and five in primary four.

(2) The applicant

8. The applicant is the mother of three children. Her eldest daughter is a student in the School, studying primary 3 in the school year of 2003/04. Her second daughter started primary one in the school year of 2002/03. Her youngest son is due to start primary one in the school year of 2004/05.

9. The applicant's family lives near the School. It takes five minutes to walk from their home to the School. According to the applicant, as a result of the School not able to operate primary one class in 2002/03, her second daughter had to enrol with another rural school in another village and have experienced difficulties with regard to the travelling arrangement. The applicant wishes to have her son enrol with the School in the school year 2004/05.

(3) The Primary One Admission (POA) system

10. Since 1983, the POA system has been in place to process centrally the admission of children to primary one in government and aided primary schools in Hong Kong. The POA system is operated by the Education and Manpower Bureau ("EMB") (formerly the Education Department).

11. Under the system, there are two stages of admission, the Discretionary Places ("DP") stage and the Central Allocation ("CA") stage. The government and aided schools participating in the POA system are grouped under different school nets based on their geographical location. At the DP stage, parents can apply to only one of the participating schools and admission is based upon prescribed POA procedure and criteria. At the CA stage, those students who have not been admitted to the school of their choice during the DP stage, will be allocated to a school in the school net to which they belong, based upon the parents' choice and the random number allocated to the students.

12. Based on the number of students admitted by a school during the DP stage and the result of computer analysis of the choices made by parents at CA stage, the EMB will work out the total number of students to be allocated to each primary school, and in turn the number of primary one classes that the school is allowed to operate. If a school cannot admit sufficient number of students in the POA exercise, it will not be granted aid to operate any primary one class in the coming school year. The EMB will then arrange for the students that the school has admitted at the DP stage to transfer to other schools. Prior to January 2003, schools adopting activity approach had to have no less than 16 students in order to be allowed to operate primary one class. In January 2003, the number was raised to 23 students.

13. In July or August each year, the EMB will compile the POA School List for the coming school year to be distributed to kindergartens and primary schools participating in the POA exercise. The List will give information about the primary schools to which parents can apply for primary one admission for their children.

14. The compilation of the POA School List is carried out annually. Decisions on the schools to be included on the List are made on an annual basis. Prior to the POA for 2004/05, whether a school with no primary one class in the current school year is to be included in the School List and to participate in the coming POA exercise is a matter to be decided by the relevant Chief School Development Officer. According to the respondent, the practice is for the District Education Officer or School Development Officer to orally inform the supervisor or principal of the school concerned of the EMB's intention to exclude the school from the POA School List and the POA exercise for the coming school year. Any objections raised will be considered. Otherwise, if no objection is received, the EMB would proceed as intended, and no written notification will be given.

15. For schools that have been excluded from the POA School List and POA exercise for a particular school year, the EMB may allow them to be put back onto the List if there are changes in the circumstances. Admittedly however, this is unlikely to happen to schools that had been excluded on account of low student intake. Indeed, in the example of school allowed to be restored to the School List cited by the respondent, the school was withdrawn from the POA School List not because of low student intake, but because of management problem.

16. If there is no change in circumstances and if the school does not request to be restored to the School List, a school that has been excluded from the POA School List and POA exercise for one year will continue to be excluded for the following year. And if the state of affairs remains unchanged, the school concerned will come to a cessation in a few years' time with the graduation of its last batch of students.

(4) The Consolidation Policy

17. In April 2003, the EMB submitted to the Legislative Council a discussion paper proposing consolidation of high-cost and under-utilized aided primary schools. In May and June 2003, the paper was discussed at meetings of the Panel on Education. During this period, the EMB also conducted consultations with various representative bodies and school sponsoring bodies. The Alliance of Parents of Rural Schools was among the bodies consulted and had made representations on the consultation paper at one of the meetings of the Panel of Education. Eventually, the EMB decided to implement the Consolidation Policy proposed in the paper, but with modifications, in the school year 2004/05.

18. Much has been said by way of affirmation as to the background and reasons for the Consolidation Policy. For the purpose of these proceedings, it is not necessary to go into the details. In summary, there are two main reasons leading to the formulation of the Policy. Firstly, as a result of a declining trend in the population in the 6-11 age group, there are surplus primary school places. Schools that are situated in remote areas and/or are less popular, including rural schools, therefore experience under-enrolment. Secondly, in view of the government-wide target to restore the fiscal balance by the financial year of 2008/09, the envelope allocation for all government departments and bureaus, including the EMB, has to be cut by up to 11% over five years from the year 2004/05. As such, it is considered reasonable to close down by phases those under-enrolled and high costs primary schools.

19. It is estimated that under the Consolidation Policy, a total of 120 government and aided schools will be closed down in the coming few years. The total recurrent expenditure of these schools for the financial year 2003/04 is $1,032 million, representing about 10% of the total recurrent expenditure on or subvention to government and aided schools. It is the respondent's case that the savings thus achieved can be used for other worthwhile and more cost-effective educational measures.

20. The Consolidation Policy has several components. For the propose of these proceedings, it is only necessary to note those relating to schools operating combined class(es), which is said to be educationally undesirable. Under the Consolidation Policy and within a particular school net, if there is an adequate supply of school places, then schools operating combined class(es) will not be allocated any primary one class in the year 2003/04. Schools operating combined classes will be closed down within one to three years from 2003/04 depending on whether it was operating primary one class in 2003/04 and the total enrolment or number of operating classes. For schools operating combined class(es), if it is not operating primary one class in 2003/04 (Year N), and if it has two classes or the present enrolment is less than 49, then it will be closed down in the year N + 1, i.e. 2004/05.

21. As a result of implementing the Consolidation Policy, 14 aided primary schools became immediately affected in that grants to them will cease with effect from 1 September 2004. Five of these schools agreed to closure. Of the remaining nine that did not agree to closure, one school was given special consideration to continue receiving grants in 2004/05. The other eight schools, of which the School is one, had received formal notification of cessation of grant by way of a letter dated 10 December 2003.

II. EVENTS LEADING TO THE APPLICATION

22. In the POA exercise for 2002/03, the School had insufficient students for the operation of primary one class. By a letter dated 13 May 2002, the School was notified by the then Education Department that it would not operate any primary one class in the school year of 2002/03. The School did not express any objection to it.

23. On 28 May 2003, the supervisor of the School had a meeting with the officers of the Education Department to discuss the dispute in the school management committee. In the meeting, the supervisor said he preferred not appointing any new principal if the dispute was not resolved. At that point, the School Development Officer pointed out that though the School would operate for four more years at the most (i.e. the School would not operate primary one class in 2002/03, and it would not be included in the POA School List for 2003/04), the interests of the students should be taken care of. To this, the supervisor was recorded in the minutes to have responded that he would rather let the school close, as it could only exist for four years, than to let the three school managers "黑箱作業". It is the respondent's case that the supervisor did not show objection on the occasion and thereafter, and the Education Department was led to believe that the School agreed to or had no objection to being excluded from the POA School List for 2003/04.

24. The supervisor, Mr Sung, however stated that the Education Department officers mentioned to him in a casual manner that the School would have no primary one class in 2002/03 and the subsequent years, so the School would operate at most for four more years. He said he did not pay much attention to the conversation as he was in a depressed mood, being unhappy over the dispute with the other school managers. According to Mr Sung, he had said that if it was decided that the School should not operate primary class in future, a written explanation should be given to the School. He could not recall having uttered the response recorded in the minutes, but if he had, he said it must be a slip of tongue and he would not have meant what was said.

25. Mr Sung also refers to an earlier occasion on 18 May 2002 when nine candidates were interviewed for the post of school principal. All of them were asked by the selection panel to offer proposals for recruiting primary one students. The School Development Officer of the Education Department was also present throughout the interview, but she had not corrected the panel that the School would not be allowed to operate primary one class in future. The Officer explained that it was because she was merely acting as an observer, adding also that Mr Sung had subsequently at the 28 May 2002 meeting been alerted to the Department's intention.

26. On 4 July 2002, it was decided that the School would be excluded from the POA School List for 2003/04. The POA 2003 School List was compiled in July 2002 and made available to kindergartens and participating primary schools in August 2002. In September 2002, the new principal of the School, Mr Fong, became aware that the School was not included in the POA 2003 School List. The former principal had retired in August 2002. It is the respondent's case that the former principal had before his retirement been informed that the School would be excluded from the POA School List. The supervisor however maintains that neither he nor the school managers had any knowledge of this.

27. On 16 September 2002, Mr Fong wrote to the Secretary for Education and Manpower ("SEM") complaining, inter alia, that the School had no knowledge that it was not allowed to recruit primary one students. At about the same time, a number of rural schools had raised objections to being excluded from the POA 2003 School List. On 18 September 2002, a meeting between representatives of 16 rural schools, including that of the School, and the SEM was arranged by Legislative Councillor The Hon. Mr Cheung Man Kwong. It was agreed at the meeting that these schools would make representations individually to the Education Department for considerations.

28. By a letter dated 19 September 2002 ("the 19-9-02 Letter"), Mr Fong on behalf of the School wrote to the Education Department requesting for the School to be put back onto the POA School List and to be allowed to recruit primary one students. By a letter dated 27 September 2002 ("the 27-9-02 Letter") from the Director of Education, the School's request was refused. I shall return to deal with these 2 letters in details in the context of the challenge to the second decision.

29. By another letter dated 25 November 2002, the School reiterated its request to be restored to the POA School List and participate in the recruitment of primary one students for 2003/04. By a letter dated 9 December 2002, the Director of Education refused the request.

30. In February 2003, by virtue of the Education Reorganization (Miscellaneous Amendments) Ordinance 2003, the Permanent Secretary and the EMB took over the duties of the Director of Education and the Education Department respectively.

31. By a letter dated 23 April 2003, the EMB informed the School that it would operate one combined class for primary three and primary four, and one class of primary five and one class of primary six for the school year 2003/04.

32. On 6 August 2003, the EMB issued a circular to all government and aided primary schools informing them that, in view of the large surplus of primary one school places, schools that did not operate primary one classes in 2003/04 would not participate in the POA 2004 exercise and would not operate primary class in 2004/05.

33. On 6 October 2003, two EMB officers held a meeting with Mr Fong and Mr Sung to discuss the closure of the School under the Consolidation Policy. During the meeting, both Mr Fong and Mr Sung did not agree to the closure of the School in 2004/05 and insisted to continue operating the School until all the current students have graduated from it.

34. On 2 November 2003, the EMB officers met with Mr Fong and two other school managers. The parents of all the students (except one) were also present. The absent parent had also sent in written representation. At the meeting, the Chief School Development Officer (North) stated that the EMB would formally give notice of the cessation of grant to the School with effect from September 2004, and the School had to consider whether to cease operation. Mr Fong, the school managers and all the parents present requested the EMB to allow the School to continue operation until the last class of students had graduated.

35. By a letter dated 10 December 2003, the SEM gave notice to the School that the EMB would cease to provide grants to the School as from 1 September 2004.

III. THE APPLICATION

36. On 9 March 2004, the applicant applied for leave to judicial review. As a result of the applicant's application for legal aid, the proceedings were stayed. The applicant was eventually granted legal aid. Leave to judicial review was granted on 4 May 2004. On 11 May 2004, the applicant filed the Notice of Motion. On 14 May 2004, the EMB (who was then named as the respondent) applied to set aside the leave granted in relation to the first decision challenged. After a contested hearing, the application was dismissed by a decision handed down on 9 June 2004. The Form 86A was in the meantime amended by naming the Permanent Secretary as the respondent.

37. In the Amended Form 86A, the applicant asks for the following relief:

(1) To restore the right of the School to recruit primary one students.

(2) To quash the decision to cease providing grants to the School.

(3) To allow all the existing students to continue their studies with the School until their graduation.

38. In respect of the last relief, Mr Kwok in his submissions clarifies that the applicant is seeking a declaration that the grants to the School should continue until all the existing students have left the School, whether upon graduation or upon their securing alternative school placements.

IV. THE CHALLENGE TO THE FIRST DECISION

(1) Reasons for the first decision

39. The first decision challenged by the applicant is that made on 4 July 2002 to exclude the School from the POA School List for 2003/04. The decision was undertaken by the Chief School Development Officer (North). She gave the following reasons for the decision:

(1) Since 1998, the School had a continuous low intake of primary one students. Between 1998/99 and 2001/02, the School was only approved to operate half a class of primary one.

(2) There was a continuous decline in the demand for primary one school places in the school net to which the School belong.

(3) The School was operating combined classes.

(4) There was very little chance that the School would be able to recruit sufficient number of students in the POA exercise to qualify for the operation of primary one class.

(5) To allow the School to participate in the POA exercise would give a false hope to the parents that the School would operate primary one class. If the total parent choices were insufficient to enable the School to operate primary one class, students who had chosen the School in the DP stage would have to be transferred to other schools.

(6) The School was not operating a full curriculum since it had no primary one class in 2002/03.

(7) The supervisor of the School had raised no objection at the meeting on 28 May 2002 when it was mentioned that the School would not participate in the POA 2003 exercise.

(2) The applicant's arguments

40. The applicant challenges the first decision on only one ground; namely, there was no or no proper consultation before the decision was made to exclude the School from the POA 2003 School List. It is submitted that the School had not been given proper and adequate prior notice to enable it to make representation. It is pointed out exclusion from the POA School List is a matter that carries grave consequences for schools in that it will impact upon their ability to survive. Despite that, there was throughout no written communication. The quality of communication is thus said to be a poor one. The oral communication to the former principal, whom the Education Department officers knew was about to retire, serves no purpose since he had no practical interest in the matter. The communication to the supervisor was equally unsatisfactory in that the 28 May 2002 meeting was to deal with a wholly unrelated issue.

(3) The respondent's arguments

41. For the respondent, it is argued that it was entirely reasonable for the Education Department to have proceeded in the way it did since it was given to understand that the School agreed to or had no objection to being excluded from the POA School List. It is also said that there was nothing unfair in the process in that the School had no legal right to operate primary one class in 2003/04, that the School could not have expected to be allowed to recruit students for 2003/04 when it did not have primary one class in 2002/03, and that the School had been informed of the Education Department's intention in May 2002, but had not requested to be put on the School List. It is pointed out that the applicant, being a parent, can have no expectation of being consulted on the matter. It is further submitted that subsequent to July 2002, there had been genuine opportunity for the School to make representations such that the process as a whole satisfies the requirement of fairness and the ultimate decision made is a fair one. Finally, it is also submitted that no relief should be granted since it will serve no useful or practical purpose.

(4) The issues

42. Broadly speaking, the challenge to the first decision involves three issues:

(1) Whether there had been proper consultation before the first decision was made;

(2) Whether the decision process as a whole satisfies the requirements of fairness; and

(3) Whether the court should exercise its discretion to grant the relief sought.

(5) No or no proper consultations

43. There can be no doubt that the exclusion of a school from the POA School List and in turn the POA exercise is a matter of great importance to any primary school that has been participating in the POA exercise. To say the least, it means that the government will not provide the school with funds to operate primary one class in the relevant school year. More likely than not, the school will then not have a primary one class, hence not a full curriculum, thereby becoming less popular with and attractive to parents. Although the decision to exclude a school from the POA School List and the POA exercise is made on an annual basis, it carries far-reaching implications for the school concerned because it puts the ability of the school to continue operation in the long term at risk.

44. In the case of the School, which had for some years had difficulties in recruiting primary one students, the consequences and implications of being excluded from the POA School List and the POA exercise is even more serious. As in the case of other government and aided primary schools, the POA exercise is the major occasion and opportunity to recruit primary one students. The severity of the decision is not in any way lessened by the fact that the School had not been operating primary one class in the year 2002/03. While the School was not operating a full curriculum thereby adversely affecting its popularity, the decision effectively confirms the cessation of the School in time.

45. Indeed, I do not understand the respondent to be disputing that the decision to exclude the School from the POA School List and the POA exercise has an impact on the continued operation of the School and is therefore an important one for the School as a whole. It is therefore understandable that the School and the applicant, being one of the parents, would take exception with the way in which the initial intention and the eventual decision of the Education Department were communicated; hence the complaint that there had been no proper consultation before the decision was made in July 2002.

46. The respondent's evidence shows that the outgoing principal of the School was informed by telephone of the Education Department's intention to exclude the School from the POA 2003 School List, and that he had shown no objection. It is not clear from the evidence whether the School Development Officer was calling to consult the principal's views or she was asking the principal to relate the message to the school management, including the supervisor, the school managers and the sponsoring body, and to gather their views. All she said in the affirmation is that she was conveying a notification of the Department's intention. Assuming that the call was to seek the views of the principal, it must nevertheless be plain to the responsible officers that on such an important matter, it is insufficient to consult only the principal, quite apart from the fact that the principal was about to retire.

47. As to the 28 May 2002 meeting with the supervisor, it is not set up to deal with the exclusion of the School from the POA School List and the POA exercise. It was by chance that the matter came to be mentioned. The matter was not brought up for the purpose of informing the supervisor of the intention and/or seeking his views on it. It is unfortunate that the Education Department should attach so much weight to the response of the supervisor on the occasion and was led to believe that the School agreed or did not object to its being excluded from the POA School List and the POA exercise for 2003/04. On the assumption that Mr Sung did utter the response that he would rather let the school close, it must be plain that it was an emotive remark made at a time when he was upset about the school management. It must be doubtful whether this could be taken as an indication of the supervisor agreeing to or having no objection to the School being excluded from participating in the POA.

48. It is correct that the School had made no representation to the Education Department on the matter in the period from May to September 2002. The question is whether this can be taken to be an indication that the School agreed or did not object to the exclusion. It is the applicant's case that the School management was unaware of the telephone conversation with the outgoing principal. As noted above, the evidence does not show that the outgoing principal had been asked to relate the Department's intention to the school management. The evidence also does not show that the school managers and/or the school sponsoring body had been informed of the intended exclusion. On the respondent's evidence, this was mentioned to the supervisor at the 28 May 2002 meeting. But given that he was having a dispute with the school managers, it could not be assumed or expected that he would pass on the information to the school managers. In my view, the Department could only confidently act on the silence of the School in the period leading up to the making of the decision as an indication of no objection if it had reasonable grounds for believing that the message had or would have been properly communicated to the School management authority, and not just to Mr Sung.

49. The evidence shows that it has been the practice of the Department/ Bureau to communicate orally the intention to exclude a school from the POA School List, and not to give any formal notification of the eventual decision if no objection is put up. I do not propose to make any general observation on the propriety of the practice having regard to the importance of the intended decision to the schools concerned. However, the adoption and reliance of this practice in the present case is obviously inapt in view of the management problem within the School, a matter known to the officers of the Department at the time. For the reasons set out in the preceding paragraphs, the Department could not be reasonably certain that the school management was fully aware of the intention to exclude the School from the POA School List. Further, the fact that the School did not make any representation in May and June 2002 should not have been taken as an indication that the School agreed to or did not object to the exclusion.

50. For any consultation to be proper, it must be undertaken at a time when proposals are still at a formative stage; sufficient reasons for the proposal must be given to allow those consulted to give intelligent consideration and response; adequate time must be given for consideration and response; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v. Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168, cited in R v. North and East Devon HA, Ex p Coughlan [2001] QB 213 at 258.

51. I am of the view that, to the extent that the School is affected by and has a legitimate interest in the decision to exclude it from the POA 2003 School List and the POA exercise, the School ought in the interests of fairness to have been consulted. This is consistent with the practice of the Department/ Bureau to communicate an intended exclusion and to consider any objections made before finalizing the compilation of the POA School List. In the present case, however, the steps taken by the Education Department before the decision was made in July 2002 to exclude the School from the POA 2003 School List hardly met the criteria formulated in R v. Brent London Borough Council, Ex p Gunning. The School had not been afforded a proper opportunity to take a considered view and to make representations before the decision was taken.

(6) The requirements of fairness

52. Notwithstanding this, I consider that the applicant's challenge to the first decision cannot succeed for the reasons appearing below.

53. Firstly, Mr Yu SC submits, and I agree, that in considering whether the requirements of fairness have been met in this case, the Court should consider whether the overall procedure is a fair one and in the light of the purposes and objectives of consultation.

54. The applicant's challenge to the first decision falls within the broad ground of procedural impropriety. The underlying concept is the duty of a decision maker to act fairly when it has to make a decision that will affect the rights of individuals. The requirements of justice will vary depending on the character of the decision-making body, the nature of the decision and the statutory or other framework in which it operates: Lloyd v. McMahon [1987] AC 625, 702.

55. In the context of the requirement to consult and hear representations, it has been pointed out by Lord Mustill in R v. Home Secretary ex parte Doody [1994] AC 531 at 560 that:

"Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both."

56. In R v. London Borough of Barnet ex parte B [1994] 1 FLR 592, the applicants applied to judicial review the decision of the local council to close a nursery school which they were attending. The parents of the children attending the school were not informed of the proposal to close the school before the council made the decision and communicated it to them. After the decision was communicated, the council proposed to and did conduct 3 stages of consultation. Eventually the council confirmed its earlier decision despite the parents' objections. In dealing with the applicants' complaint that there was no or no adequate consultation, Auld J (at 606D-E) was of the view that the question of whether the council behaved unfairly in failing to consult or to consult adequately before it made the decision in the first place, is superseded by the question whether its later conduct, including the subsequent consultation, was unfair. He stated that: "Where the court is concerned with the procedures and decision of one body, ... the test, ... , is whether the ultimate decision is a fair one reached by fair methods".

57. It is not in dispute that in the 18 September 2002 meeting, the Secretary for Education and Manpower had agreed to receive and consider representations from schools including the School. Thereafter, the School did through the principal make written representations on the matter. It is also not in dispute that the Education Department had duly considered the representations made, as reflected in the reasons given for maintaining the July decision to exclude the School from the POA School List and the POA exercise.

58. When approaching the first decision on the broad consideration of fairness, the court should also have regard to the conduct of the Department since September 2002 and leading to the decision in December 2002 to maintain the July 2002 decision. The School was afforded an opportunity to make representations to the Department on and to draw to its attention, information about the School and its students, and the perceived impact of the decision upon the School and parents and students living in the village. Although in the end it decided to maintain its earlier decision, the Department had been prepared to re-consider its decision. I agree with Mr Yu SC that this was a round of genuine and fair consultation.

59. Mr Kwok does not quarrel with this. He however points out that by the time this was done, the decision had been made and implemented, and the consultation served no useful purpose. While I accept that it would have been much better if the consultation took place before the July decision was made, I will not go so far as saying that the consultation carried out in September had no utility. It was open to the School to, and it did, make representations with a view to persuading the Department to change the July 2002 decision. Although by then the DP stage of the POA exercise had been launched, the CA stage had yet to commence. If, after considering the representations made, the Department were persuaded to vary the July decision, the School would still be able to participate in the CA stage with an amendment to the POA School List.

60. In the circumstances, having regard to the process as a whole, it cannot be said that the requirements of fairness has not been attained.

(7) Futility of the relief sought

61. Secondly, the grant of remedy in a judicial review application is discretion. The court will not grant relief if it serves no practical or useful purpose: see Fordham, Judicial Review Handbook, 3rd edition (2001) para. 4.5 at pp.89-91. The School, being a school operating combined classes, will not be given grants to operate primary one class under the Consolidation Policy introduced after mid-2003. It has thus become academic whether the decision to exclude the School from the POA School List is vitiated. At the same time, the applicant is now only asking that government aids to the School should be continued until the existing students have graduated or secured alternative school placements. Whether the decision to exclude the School from the POA School List should be quashed has therefore ceased to have any practical purpose. In the premises, the remedy of judicial review ought not, as a matter of discretion, to be granted.

62. Accordingly, the challenge to the first decision fails.

V. THE CHALLENGE TO THE SECOND DECISION

(1) The Permanent Secretary's decision

63. The second decision challenged was that made on 10 December 2003 to cease to provide grants to the School with effect from 1 September 2004. The decision was undertaken by the Permanent Secretary personally. In her affirmation, the Permanent Secretary explained, in general, that before making the decision to apply the Consolidation Policy, she had carefully considered the views expressed during the meetings with the school managers, parents and heads of the affected schools held in October and November 2003, and the interests of the students vis-à-vis those of the school managers, teachers and principals. In the case of the School, the EMB officer had reported to her the views of the School and the parents received at the meetings on 6 October and 2 November 2003. She did not find the reasons given to be convincing enough to justify exceptional treatment. She therefore decided that the Consolidation Policy should apply to the School.

(2) The 19-9-02 Letter and the 27-9-02 Letter

64. The applicant's challenge to the second decision is based on the 27-9-02 Letter from the then Director of Education. The letter was written at a time when the School was seeking to have the School put back to the POA School List. It was written in reply to the 19-9-02 Letter from the principal. In a bid to restore the School to the POA School List, the principal made four main points in the 19-9-02 Letter about the location of the School, the importance of the School to its students and the children in the district and the adverse effect on the students and parents. The relevant part of the letter states as follows:

"一．本校所服務之地區地理環境偏僻，交通不便

本校所服務之地區四面環山，與上水市中心相隔一高爾夫球場，距離約6公里，步行往上水，起碼1小時。交通不便，班次疏落，77K巴士(元朗往祥華邨)20分鐘一班、57K專綫小巴(蕉徑往上水廣場)30分鐘一班，即使無須候車順利上車，車程亦需時約10分鐘。

二．本校是地區內唯一的小學

目前全校人數64人，其中52人居住本校附近的村落，即使是其他區域的學生，他們之前也曾居住在學校附近村落，祇因遷居上樓所致。

由數字分析可見本校所服務的學生80%是區內兒童，若將本校與其他收取跨境學生的學校相提並論，可謂謬矣。

三．違反教育政策

根據本校調查結果顯示現時就讀本校的學生，其弟或妹處於適齡報讀03/04年度1年級的約有六七人，若不許我校收取一年級學生，豈不是要手足分離，違反教育署製訂的教育政策：「安排兄妹同讀一校」。

至今本校已收得兩份報讀一年級的報名表，可見本校確有其需要。

四．無端挑起家長情緒不滿

與本校距離最接近的小學是彩圍邨的學校，兩校之間相距約4公里。若本校結束，所有家長便須負擔無端額外支出，如保姆車費、午餐費；安排人手接送子女，擔憂子女放學後的街頭活動等，對家庭經濟、家庭生活、人手安排等造成沉重負擔和不便。須知居住本地區的家庭之一般收入微薄且不穩定，若因此而引來對抗，豈不是陷教育署、特區政府於不義。"

65. In the 27-9-02 Letter, the Director of Education gave four reasons for refusing the School's request for special consideration. In substance, the reasons dealt with the four points raised in the 19-9-02 Letter on a point-by-point basis as follows:

"1.	貴校所處位置附近的交通尚算方便，學生可乘搭公共交通工具上學。
2.	現就讀貴校的學生大部份居住學校附近，本署同意他們應繼續在貴校升讀。但依據過往數字，報讀貴校小一年級的學生近年極少，這顯示了學生來源不足以支持貴校開辦小一班級。
3.	本署預計在2003/04學年區內各年級學位均供應充裕。對於家長要求安排兄弟 / 姊妹同讀一校以方便照顧，本署定會盡力協助，以解決家長的困難。
4.	若有家庭由於入學問題引起經濟、家庭生活或人手安排等困難。請你通知家長致電2639 4842北區學校發展組呂麥玉琼女士聯絡，以便提供適當協助。"

(3) The applicant's case

66. The applicant's case is based on the first sentence in point 2 of the 27-9-02 Letter, namely, "現就讀貴校的學生大部份居住學校附近，本署同意他們應繼續在貴校升讀。". Translated into English, it says: "The majority of the students now studying with your school live in the vicinity of the school, the Department agrees that they should continue to further their studies with your school".

67. The applicant contends that by this statement, the Director of Education had represented and promised the students and parents of the School that the existing students could continue their study with the School until they graduate. It is argued that this creates a legitimate expectation on the part of the students and their parents that the School will continue to receive grants for its operation until the existing students graduate. In her affirmation leading the application, the applicant states that she, the School and the other parents all genuinely believe that the Department agrees and allows the existing students to continue studying in the School until they graduate (本人，建德學校及其他家長都真誠相信該局同意及容許我們現正在建德學校就讀的學生，可以在建德學校繼續升讀，直至畢業。).

68. The applicant complains that the Permanent Secretary did not take their legitimate expectation, being a relevant consideration, into account when she made the decision to cease grants to the School effective from 1 September 2004. On this basis, the applicant says that the decision should be quashed and seeks a declaration that the School should continue to be provided with grants until all its existing students graduate or secure alternative primary school places.

(4) The respondent's arguments

69. For the respondent, it is argued that the 27-9-02 Letter did not give rise to a clear and unambiguous promise when considered in the context and having regard to the conduct of the applicant. Even if there was a clear and unambiguous promise, the applicant has not made out a case of reliance on the promise as would entitle her to relief. It is further submitted that the case does not involve any question of fundamental human rights, so that in view of the consultations that had been undertaken and the alternatives available to the applicant's daughter, there is no abuse of power that merits the court's intervention.

(5) The doctrine of substantive legitimate expectation

70. In R v. North and East Devon HA, Ex p Coughlan para. 57 at 241-2, Lord Woolf MR, handing down the judgment of the Court of Appeal, considers there are at least three possible outcomes where an applicant makes a challenge on breach of legitimate expectation as follows:

(1) The court may decide that the authority is only required to bear in mind its previous policy or representation, giving it the weight it thinks right, but no more, before deciding whether to change course. In such a case, the court may only review the decision on Wednesbury ground.

(2) The court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. The court will in such a case require the opportunity of consultation be given unless there is an overriding reason for resiling from it, in which case the court will judge the adequacy of the reason given, taking into account the requirements of fairness.

(3) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, the court will in a proper case decided whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.

71. It is the third situation of substantive legitimate expectation that the applicant relies upon. In Ng Siu Tung & Others v. Director of Immigration (2002) 5 HKCFA 1, the Court of Final Appeal held that the doctrine of substantive legitimate expectation is part of the administrative law of Hong Kong. In the judgment of the majority (paras.91-99 at pp.41-43), the following general points about the doctrine were made:

(1) Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.

(2) Although it is essential that the government and the relevant government agency remain free to change its policy, the adoption of a new policy does not relieve a decision-maker from his duty to take account of a legitimate expectation.

(3) The doctrine as developed comprises four aspects:

(i) The law requires that a legitimate expectation arising from a promise or representation be properly taken into account in the decision-making process so long as to do so falls within the power, statutory or otherwise, of the decision-maker.

(ii) Unless there are reasons recognised by law for not giving effect to legitimate expectations, then effect should be given to them. Fairness also requires that, if effect is not given to the expectation, then the decision-maker should express its reasons so that they may be tested by the court when the decision is challenged.

(iii) Even if the decision involves the making of a political choice by reference to policy considerations, the decision-maker must make the choice in the light of the legitimate expectation of the parties

(iv) If the court does not follow the requirement in (iii) above, the decision will be vitiated by reason of failure to take account of a relevant consideration. It is only in exceptional case that the court will be satisfied that the failure to do so has not affected the decision. But once the court is satisfied that this was the case, the decision will not be quashed.

72. As to what may give rise to a legitimate expectation, the Court of Final Appeal held that (paras.101-104 at pp.43-45):

(1) It is not necessary that the representation should be express. In appropriate cases, a legitimate expectation can be based on an implied representation.

(2) To support a legitimate expectation, the representation must be clear and unambiguous.

(3) Where a representation is reasonably susceptible of competing constructions, the correct approach is to accept the interpretation applied by the public authority, subject to the application of the Wednesbury unreasonableness test.

(4) To be legitimate, the expectation must be reasonable in the light of the official conduct which is said to have given rise to the expectation. This depends on the conduct of the public authority, what it had committed itself to as well as what the applicant factually expected and what he is entitled to expect.

73. Bokhary PJ (para.360 at p.108) further observes that:

"As a proposition of general application, a representation must be unambiguous and unqualified if it is to give rise to a legitimate expectation. But where representations are addressed to a wide audience including some quite unsophisticated persons, the courts should not be astute to find ambiguity or qualification. With fairness as the touchstone, the courts should look at the real impact of the representation."

74. The words used have to be understood in the context in which the representation was expressed and the circumstances leading to the making of the representation: R v. Gaming Board of Great Britain, ex p. Kingsley (16.10.1995) LexisNexis Transcript.

75. An expectation will not be regarded as reasonable or legitimate if the applicant could have foreseen that the subject matter of the representation was likely to alter, or that it would not have been respected by the relevant agency, or that the applicant knew that the representor did not intend his statements to create an expectation: Craig, Administrative Law 5th ed. (2003) p.651; see also R v. Gaming Board of Great Britain, ex p. Kingsley, op cit.

76. On the question of detrimental reliance, the authorities referred to by counsel suggest that detrimental reliance will normally be required in order for an applicant to show that it would be unlawful to go back on a representation, but it is not a condition precedent to the enforcement of a legitimate expectation: R. v. Secretary of State for Education and Employment, ex parte Begbie [2000] 1WLR 1115, R v. The London Borough of Newham, and Manik Bibi and Ataya Al-Nashed [2002] 1WLR 237, paras.28-31. It has been pointed out that it is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation: Begbie at 1123H. It is, however, recognized that there may be cases where there is reliance, without measurable detriment, and it may still be unfair to thwart a legitimate expectation in such circumstances: Bibi para.31.

77. In Ng Siu Tung, the majority of the Court of Final Appeal did not find it necessary to resolve whether detrimental reliance was required to ground a legitimate expectation since the representations in question were found to be calculated to induce reliance and it was to be assumed that they had this effect (para.110 at p.46).

78. Bokhary PJ in his partially dissenting judgment made the following points relating to an applicant's knowledge of the representation and the requirement of detrimental reliance (paras.355-360 at pp.106-108):

(1) If a person is in a class to which a representation is directed, the fact that he was unaware of it until after the decision disappointing it was made ought not to deprive him of the benefit of the representation. Legitimate expectation in this context does not depend upon the knowledge and state of mind of the individual concerned. A person is not to be denied enforcement of a legitimate expectation of his class merely because he only learned of it after the decision was made.

(2) The case for enforcing a legitimate expectation is particularly strong where a person has altered his position in reliance on that legitimate expectation so that he would suffer detriment if the expectation is not fulfilled. But detrimental reliance is not generally essential.

(3) There will be exceptional situations in which detrimental reliance is required in order to succeed on legitimate expectation grounds. Thus in the exceptional case of R v. Secretary for State for Education and Employment, ex p B (A Minor) [2000] 1 WLR 1115, a quick correction by an executive of a misrepresentation of its policy, made inadvertently, was held not to amount to an abuse of power.

(6) The issues

79. It must be noted at the outset that these proceedings do not involve any challenge to the Consolidation Policy. The applicant has not made such a challenge. The merits or demerits of the rationale underlying the Policy is not a matter for the court, whose role in judicial review proceedings is supervisory. The court is only concerned with the process whereby the decision to apply the Policy came to be made. Its task is to ensure that the power to apply policy was not abused by unfairly frustrating the individual's legitimate expectations. In this regard, there are three broad issues that the court has to consider in the present case:

(1) Whether there is a clear and unambiguous representation giving rise to a legitimate expectation;

(2) Whether the applicant is required to show she has relied on the representation to her detriment, and if so, whether she has made out a case of detrimental reliance; and

(3) Whether there is unfairness and abuse of power that merits the court's intervention.

(7) Clear and unambiguous representation

80. As the authorities had established, when considering whether there has been a clear and unambiguous representation capable of giving rise to a legitimate expectation, both the words used and the context in which they came to be expressed have to be considered. It is therefore necessary to examine the context and circumstances in which the words now relied upon by the applicant came to be made.

81. The 27-9-02 Letter was written in reply to the request to have the School restored to the POA School List. As noted above, it deals with the four points articulated in the 19-9-02 Letter on a point-by-point basis. Two things were said under point 2 by the principal in his letter. The first is that the School is the only primary school in the district where it is situated, and the second is that, unlike other schools that recruit students from across the border, 80% of the students in the School come from the district. In reply to this, point 2 of the 27-9-02 Letter says three things. It firstly acknowledges that the majority of the students of the School live in the nearby areas of the School. It then goes on to say that the Department agrees that the existing students should continue to further their studies with the School. Thirdly, it says that past statistics shows that the School does not have sufficient intake of students to enable it to operate primary one class. The crux of this part of the applicant's application turns on the second statement.

82. Plainly, the short point that the Department was making under point 2 of the 27-9-02 Letter is that the School had not been able to recruit sufficient number of primary one students. One may think that the point could have been made without saying that the Department agrees that the existing students should continue to further their studies with the School. In my view, the statement is not superfluous and is not made thoughtlessly. Under the policy and practice associated with the POA system applicable at the time, schools that had not been allowed to operate primary one class would be excluded from the POA School List and the POA exercise if they had no objections or if the objections were not upheld. As analyzed above, unless there were changes in circumstances, schools excluded from the POA exercise would cease operation in a few years' time with the graduation of their last class of students. Some of the rural schools that were also objecting to being excluded from the POA School List 2003/04 in about the same period had made specific reference to this scenario. It can be seen from the correspondence exhibited by the respondent that these schools had argued in very strong language that their exclusion from the POA School List implied the cessation of their operations, to which they strenuously opposed.

83. Clearly, the statement that the Department agrees that the existing students should continue their studies with the School is a reference to the above practice or policy, which was in place before the adoption of the Consolidation Policy. But for the subsequent implementation of the Consolidation Policy, the School would have continued to operate, though it would have no new classes and would in time cease operation when the last class of existing students graduate. This is directly relevant to the principal's point that the School is the only school serving the district and 80% of its students came from the district. The Department was affirming the School's role vis-à-vis the students coming from its district and confirming that the role and its existing students would not be affected by the School's exclusion from the School List.

84. It is argued that the 27-9-02 Letter was to communicate and explain a confirmation of the first decision, there was no conscious decision to give a promise and the words used do not constitute a promise. It is true that in the 19-9-02 Letter, the School did not seek a promise that its existing students could continue their studies with the School until they graduate. It is also the case that the 27-9-02 Letter was written in connection with the decision to exclude the School from the POA School List. But it would not be right to view the first decision and the 27-9-02 Letter in isolation. More importantly, when read in the context and against the relevant circumstances, it becomes clear that in stating that the Department agrees that the existing students should continue their studies with the School, the Department was addressing the needs of the students in the district served by the School and the School's role vis-à-vis them. It was not an unwittingly made statement. Neither was it a mere expression of agreeing with the sentiments expressed by the principal that most of the students live near the School. The Department was making a conscious statement confirming that the students could continue their studies with the School, unaffected by the decision to exclude the School from the POA School List. The Department was committing itself to the practice or policy then in use, namely, the School could not participate in the POA exercise and would have no primary one class, and would cease operation upon the graduation of the last class of students.

85. It is also argued that the words used were not unequivocal: the statement may mean that the existing students could continue in the following school year of 2003/04; it may also mean that they could continue until there is a change of policy. I do not agree. It is apt to recall the point Bokhary PJ made in Ng Siu Tung that the court should not be astute to find ambiguity in the case of an unsophisticated audience, and should look at the impact of the representation. To a reasonable parent or student of the School, the words "繼續在貴校升讀" naturally mean continue studying with the School until graduation. He would not find the meaning unequivocal, and certainly not in the sense contended by the respondent. Further, there is no ambiguity when the words were read in context and considered in the light of the practice or policy associated with the POA system that was in place at the time, and as mentioned above.

86. It is further argued that the 27-9-02 Letter does not contain an express promise that the Department would not cease providing grants to the School, and that it would be unfair to hold that such a promise had been given if no one had thought of giving any commitment about the giving of grants. In my view, the provision of grants must always be a matter within the considerations of the Department. After all, the School is an aided school. The decision to exclude the School from the POA School List is also closely related to the issue of whether the School should be given grants to operate primary one class. In agreeing that the students should continue their studies with the School, the Department by necessary implication must also be confirming that grants would be made available to the School for it to continue operation. There is no unfairness in holding the Department had so committed itself.

87. In summary, I am of the view that the Department had by the 27-9-02 Letter made a clear and unambiguous representation that the existing students of the School could continue their studies with the School until they graduate, and had made a binding assurance to the students and parents that the School would be given grants to continue operation until its existing students graduate.

(8) Detrimental reliance

88. As noted above, it would appear from the authorities that detrimental reliance is an important aspect of the law on legitimate expectation, and will normally be required in order to show that it would be unlawful for a public authority to go back on its representation. This has been explained on the basis that "if the individual has suffered no hardship, there is no reason based on legal certainty to hold the agency to its representation": Craig at p.652.

89. In the present case, the 27-9-02 Letter was not addressed to the applicant. The evidence filed does not show when it came to the attention of the applicant. At the meeting with the representatives from the EMB to discuss the cessation of grants to the School, although the parents had requested that the existing students be allowed to continue their studies with the School, no one had made any reference to the 27-9-02 Letter. On the facts, the Department had not made the representation to the applicant.

90. In R v. Ministry of Defence, ex parte Walker [2000] 1WLR 806, the applicant, who sustained severe injury when stationed in Bosnia as part of the United Nations Peace-keeping Force, applied to judicial review the decision of the ministry rejecting his claim for compensation under the Criminal Injuries Compensation (Overseas) Scheme. He sought to rely on a letter circulated within the ministry in which it was stated that the aim of the scheme was to provide compensation for members of the armed forces and their dependants who were victims of crimes of violence while serving overseas, as giving rise to a legitimate expectation that he would be compensated under the scheme. His appeal against the dismissal of the application was dismissed by the House of Lords on the ground that he was unaware of the policy of the ministry in administering the scheme, the only legitimate expectation he could have was that the ministry would apply whatever its policy was at the relevant time. Both Lord Slynn of Hadley (at 813D) and Lord Hoffmann (at 816A) pointed out that the applicant had not seen the letter in question and the ministry had made no express representation to him that he could be paid compensation under the scheme, or that he had relied on any representation as to compensation in going to Bosnia that would entitle him to say that his legitimate expectation had been frustrated.

91. For the respondent, it is therefore contended that if the applicant knew nothing about the 27-9-02 Letter before the second decision was made, there was no reliance on it and no detriment suffered, such that there can be no unfairness or abuse of power to go back on the representation in the letter.

92. The applicant, on the other hand, argues that the second decision in implementing the Consolidation Policy represents a departure from an established policy, in which case reliance is not essential. The applicant draws support from the judgment of the English Court of Appeal in Bibi (para.30) in which a passage from Craig (at p. 652) was cited with approval. It says as follows:

"Where an agency seeks to depart from an established policy in relation to a particular person detrimental reliance should not be required. Consistency of treatment and equality are at stake in such cases, and these values should be protected irrespective of whether there has been any reliance as such." (emphasis added)

93. In making this argument, the applicant is advancing a case different from that stated in the Amended Form 86A and the supporting affirmation. The applicant appears to be saying that she expects the EMB would apply the policy applicable before the introduction of the Consolidation Policy. This is different from the representation that the existing students of the School could continue studying with the School until they graduate.

94. Quite apart this, I am of the view that the exception given by Craig does not assist the applicant. The emphasis of the example given by Craig is consistency and equality of treatment by public authority, so that if an authority decides to treat an individual differently by departing from an established policy, then detrimental reliance should not be required.

95. In the present case, although the Consolidation Policy represents a change of government policy in providing grants to government and aided primary schools, the Permanent Secretary, in deciding to apply the Consolidation Policy to the School, was not seeking to depart from an existing or established policy in relation to the School in particular.

96. As said in Bibi (para.31), "the significance of reliance and of consequential detriment is factual, not legal". In Begbie (at 1124C), Peter Gibson LJ, citing from de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed. (1995), p.574 para.13-030, also observed that detrimental reliance is relevant as providing evidence of the existence or extent of an expectation.

97. The 27-9-02 Letter and the representation in it was addressed specifically to the School, not to the applicant or the parents in general. The evidence does not show that the applicant was aware of it or its contents, or had relied on it to her detriment. In the circumstances, it cannot be said that she has derived any understanding from the representation or that she has been led to believe that the EMB would be bound by the representation in the letter. There is therefore no factual basis for any expectation to arise.

98. Mr Kwok has argued that it would be difficult for the applicant, being an unsophisticated and less resourceful parent, to show any concrete detriment. It is pointed out that she and her daughter have not much choice other than attending the School. As observed in Bibi (paras.53-55), the fact that a person has not changed his position after a promise was made does not mean that he has not relied on the promise. It may be because he lacks any means of escape. Had it been shown that the applicant knew of the 27-9-02 Letter and had the legitimacy of the expectation been proved, I would be inclined to agree that this is a case where the absence of concrete detriment should not have defeated an expectation legitimately held.

(9) Unfairness and abuse of power

99. It would follow from my conclusion that no expectation exists factually that it is not necessary to resolve the issue of unfairness and abuse of power. I wish only to deal briefly with two points.

100. The first is in relation to the respondent's argument that even if the applicant has a legitimate expectation, it had not been unfairly frustrated and there was no abuse of power having regard to the consultations that had taken place before the second decision was made, that no fundamental human rights were involved and the uncertainties over the continued operation of the School in the light of the small number of remaining students and teachers.

101. I accept that before the second decision was made, the principal, supervisor, school managers and the parents, including the applicant, had an opportunity to and did express their views on the cessation of grants. I also accept that the present case does not involve questions of fundamental human rights in the sense that the applicant's daughter is not being denied free and proper primary education. This of course does not mean that the right to attend a school of one's own choice is a trivial matter. There is thus considerable force in the argument that even if the second decision was made in disregard of an expectation justifiably held, it is in the circumstances not so unfair as to amount to an abuse of power.

102. The second point concerns the court's discretion to grant relief. The applicant is now asking for a declaration in a limited form. In my view, even if the applicant were successful in her challenge to the second decision, the more appropriate relief is to remit the matter for reconsideration by the Permanent Secretary in the light of the applicant's legitimate expectation. This is because the enforcement of the legitimate expectation is contingent upon a number of matters such as the number of students and teachers who will be remaining with the School, the time needed for the remaining students to find suitable alternative school placed, and whether it is viable from an educational perspective to continue the operation of the School. The weighing of these considerations falls within the remit of the Permanent Secretary.

VI. CONCLUSION

103. For the reasons set out above, the applicant's application for judicial review is dismissed. Applying the normal practice of costs follows event, I also make an order nisi that the applicant pays the respondent the costs of this application, to be taxed if not agreed.