Law Chi Yuen (Formerly Known As Law O Ki) By Wong Sin His Next Friend v. Secretary for Education
Read the full judgment text of HCAL 91/2011 on BabelCite. This High Court CFI judgment was delivered on 30 September 2016.
1. The applicant suffers from mild grade intellectual disability (“ID”). He studies as a Primary student at HHCKLA Buddhist Po Kwong School (“the School”). The School is a special school providing education for mild and moderate ID students, who have special educational needs (“SEN”) at both Primary and Secondary levels.
Cited by 3 cases · Cites 16 cases
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HCAL 91/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 91 OF 2011 _______________
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____________________ J U D G M E N T ____________________ A. INTRODUCTION 1.The applicant suffers from mild grade intellectual disability (“ID”). He studies as a Primary student at HHCKLA Buddhist Po Kwong School (“the School”). The School is a special school providing education for mild and moderate ID students, who have special educational needs (“SEN”) at both Primary and Secondary levels. 2.The Education Bureau (“EDB”) (formerly the Education Department) has implemented the Native-speaking English Teacher (“NET”) Scheme (“the NET Scheme”) in the public sector Secondary and Primary schools in Hong Kong respectively in the 1998/99 school year and the 2002/03 school year. Under the NET Scheme, upon a successful application of a school, the EDB would approve the funding of providing one or two NETs (depending on the number of classes in the school) to that school. The provision of NETs to schools is to enhance the teaching of English Language and increase exposure of students to English. I would look into more the details underlying the NET Scheme and the duties of a NET later in this judgment. 3.In April 2011, the School applied to join the NET Scheme for Primary schools given that it had been teaching English Language as a Core subject to its pupils under its school-based curriculum since the 2007/08 school year (“the School’s NET Application”). 4.On 26 July 2011, the Secretary of Education (“the Secretary”) rejected the School’s NET Application (“the Decision”). It is stated in the rejection letter (“the Rejection Letter”) that under its existing policy, the NET Scheme does not cover special schools for ID students in light of their special curriculum, different educational needs, and not being included as schools offering English Language as part of the Basic Education Curriculum. Upon the school’s request for reconsideration, the EDB on 14 October 2011 reaffirmed the Decision. 5.On 25 October 2011, the applicant applied for leave to judicially review the Decision. 6.On 15 March 2012, Lam J (as the learned VP then was) granted leave on the grounds set out in a substantively revised Amended Form 86.[1] The challenge is mounted on the principal basis that the Decision is unlawful as it is discriminatory against the applicant on the basis of his ID, which is prohibited under the Disability Discrimination Ordinance (Cap 487) (“DDO”), the Basic Law (“BL”) and the Bill of Rights (“BOR”). 7.In this judicial review, the applicant (represented by Mr Dykes SC together with Mr Valentine Yim) seeks the relief of:
8.The Secretary (represented by Ms Wong SC, together with Mr Mike Lui) opposes this application. Pursuant to the leave granted by Lam J, the Equal Opportunities Commission (“EOC”) appears in this application as Amicus Curiae and is represented by Mr McCoy SC, leading Ms Denise Souza. 9.The parties have since filed voluminous evidence over a number of rounds,[2] and the substantive hearing of the application was fixed on 9 March 2015 for three days. 10.To properly understand the arguments raised in this judicial review, it is necessary to start with some relevant background first. B. BACKGROUND B1. The special schools and mainstream schools 11.A special school is defined under section 3 of the Education Ordinance (Cap 279) as a school that has been approved by the Permanent Secretary for Education to provide education for pupils through a special education curriculum. The pupils attending special schools are those with SEN. For the present purposes, these pupils are those who have learning difficulties by reason of intellectual disability (ie, ID) or disabilities not related to intellectual disability (“Non-ID Disability”)[3] or a combination of both. 12.Other than the special schools, all other schools offering Primary and Secondary education are classified as “mainstream schools”. 13.It is the Government’s policy to place children with severe learning difficulties and multiple disabilities in special schools for more intensive support. Children who can benefit from learning in the ordinary school setting are enrolled in mainstream schools.[4] 14.However, other students with SEN who can benefit from studying in mainstream schools may choose to participate in relevant school places allocation systems. The number of such disabled students studying in mainstream schools is however very small.[5] 15.There are special schools (“ID Schools”) which are catered for ID students only. The other special schools (“Non-ID Schools”) are for Non-ID Disability students. 16.In relation to ID Schools, the EDB adopts a three-tier classification:
17.In the 2011/12 school year, there were 457 Primary schools, 400 Secondary schools and 60 special schools. 18.All mainstream students enjoy 12 years of Primary and Secondary education (six years Primary and six years Secondary). ID Schools similarly offer their students a 12-year academic structure (including six years of Primary, three years of Junior Secondary and three years of Senior Secondary education). B2. The curriculum reform in 2001 and “the One Curriculum Framework for All” principle 19.After conducting a holistic review of the school curriculum, the Curriculum Development Council (“CDC”)[6] published a report (“the CDC 2001 Report”) which set out directions for curriculum development in Hong Kong (“the Curriculum Reform”). 20.Under the Curriculum Reform, the CDC proposed that subjects under the revamped curriculum be grouped into eight Key Learning Areas (“KLA”). The KLA are Chinese Language Education; English Language Education; Mathematics Education; Science Education; Technology Education; Personal, Social and Humanities Education; Physical Education; and Arts Education. 21.Further, the CDC in the CDC 2001 Report proposed that there should be one curriculum framework providing an open and flexible structure and the general direction for schools to design and develop their own suitably balanced and coherent school-based curriculum, but with reference to such factors such as the learning needs, interests and abilities of the students, teachers’ readiness and also the school context.[7] This has been generally referred to as the “One Curriculum Framework for All” principle. 22.The curriculum framework is made up of curriculum goals, curriculum contents, curriculum organisations, learning objectives, learning and teaching approaches and expected learning outcome.[8] 23.A “curriculum” is defined as the set of total learning experiences through which students learn for whole-person development. The essential learning experiences include moral and civic education, intellectual development, community service, physical and aesthetic development, as well as career-related experiences. The curriculum framework that helps schools provide the learning experiences is organised around KLA where knowledge, generic skills, values and attitudes are developed. Through school-based curriculum development, students could acquire the essential learning experiences through the more structured learning of subjects, course, modules of KLA generally in classroom settings, and/or learning activities, life-wide learning/co-curricular activities, service learning, etc generally outside classroom settings.[9] 24.Under this principle, the CDC has developed and recommended a central curriculum (“the Central Curriculum”) for all the schools (both mainstream and special schools) to adopt and adapt in planning and implementing their own school-based curriculum to cater for the specific needs and interests of their respective students. The CDC also advised that, under this broad and balanced Central Curriculum for students at all levels, schools should choose subjects from each of the KLA; and within each KLA, learning could be in the form of subjects, modules, short courses, projects or a combination of those.[10] B3. The Central Curriculum and curriculum guides 25.The Central Curriculum is presented in the form of conceptually cast guiding principles for the whole-school curriculum as well as KLA frameworks. Schools in adapting it to formulate and implement their own respective school-based curriculum need to take into account the diverse and specific needs of their students and make reference to the vision and mission of their individual school sponsoring bodies to develop their school-based curriculum. In other words, each individual school (mainstream or special) is entitled to and indeed should formulate its own school-based curriculum which would meet the specific needs, learning abilities and requirements of its students by way of adapting the common Central Curriculum.[11] 26.The Central Curriculum is subsequently embodied in two curriculum guides: the Basic Education Curriculum Guide (“BECG”)[12] for the school level of Primary 1 to Secondary 3, and the Senior Secondary Curriculum Guide (“SSCG”)[13] for Senior Secondary level of Secondary 4 to 6. 27.The BECG and SSCG explain the relationship between the Central Curriculum and the school-based curriculum, and encourage schools and teachers to adapt the Central Curriculum in developing their school-based curriculum. They expressly give schools and teachers the autonomy to take into account what in their view suit their own students best in designing and developing their school-based curriculum.[14] Thus, it is stated at page 15 of the “Introduction and Navigation Guide” of the SSCG:
28.Therefore, under the Government’s education policy, each school is given a lot of flexibility and autonomy to develop and implement its own school-based curriculum based on the Central Curriculum to cater for the specific needs and abilities of its own students to maximize their learning achievements. These adaptations could be achieved by, among others, readjusting the learning targets, varying the organisation of the contents, as well as adopting learning, teaching and assessment strategies. 29.As mentioned above, the BECG aims to, among others, provide recommendations of a Central Curriculum for schools and time allocation which all schools have to adopt at the Primary and Junior Secondary levels. It also provides suggestions for actions in school-based curriculum planning learning and teaching, and assessment to improve the quality of education, and for school-based adaption to meet the needs of students. 30.It is stated in the BECG that one of the feature recommendations that all schools should adopt is that the school-based curriculum should comprise the eight KLA identified in the CDC 2001 Report and the five essential learning experiences.[15] 31.Further, in conjunction with the BECG, the CDC has published, among others:
32.Similarly, the SSCG also states that the recommended Senior Secondary Curriculum to have, among others, for all the students to have the Core subjects of Chinese Language, English Language, Mathematics and Liberal Studies.[17] Subject curriculum guides of various senior Secondary Core subjects were also published by the CDC to provide mainstream schools with guidance on how the curriculum planning of different subjects can be organised.[18] 33.For the present purposes, following the “One Curriculum Framework for All” principle, the mainstream schools at Primary and Junior Secondary levels follow the Central Curriculum and adopt the eight KLA and teach their students the subjects under the KLA. Insofar as the KLA subjects are concerned, the mainstream schools develop their own subject curriculums by adapting the corresponding curriculum guides with some adaptations to form the school-based curriculum that best suit their own students’ abilities. 34.Relevantly, in relation to the teaching of English Language at the Basic Education Level (ie, Primary 1 to Secondary 3), the mainstream schools’ curriculums are adapted from the KLA Curriculum Guide 2002 and the “English Language Curriculum Guide Primary 1-6” (“the English Language Curriculum Guide”) published by the CDC.[19] B4. The curriculum respectively for Non-ID Schools and ID Schools 35.As mentioned above, under the “One Curriculum Framework for All” principle, special schools are also to adapt the Central Curriculum to develop and implement their own school-based curriculum that best suits and meets their respective students’ abilities and demands. 36.Generally speaking, Non-ID schools’ curriculums follow closely the mainstream curriculums as their students’ intellectual capabilities are the same as students in the mainstream schools. They develop their own school-based curriculum based on the Central Curriculum by adapting the BECG and SSCG and referring to the KLA Curriculum Guides and the individual Subject Curriculum & Assessment Guides prepared by the CDC. Non-ID schools under their curriculums therefore also teach at the relevant levels all the subjects in the eight KLA (including English Language) and the Core subjects (including English Language). Their students would also sit for the same assessments as taken by the mainstream schools students albeit with appropriate accommodations taking into account the specific forms of physical disabilities they suffer.[20] 37.It is however a fact that there are some students enrolled in the Non-ID Schools who also suffer from ID but with their major disability falling within the Non-ID categories, such as visual impairment, hearing impairment or other physical disability.[21] 38.As mentioned above, ID Schools are also expected to adapt the Central Curriculum and the BECG and SSCG to develop their own school-based curriculums. In doing so, they should also have reference to the relevant supplementary subject guides published by the CDC specifically for ID Schools to design and develop their curriculums. 39.At the same time, historically before the CDC 2001 Report, the ID Schools had been following the “Guide to Curriculum For Mentally Handicapped Children” (“the MH Guide”) published by the CDC in 1997 to formulate and design their curriculums. Under the MH Guide, the principle in curriculum development for ID students is that “all children whether mentally handicapped or not, have basically the same training needs and should therefore be exposed to similar learning experiences”. 40.Under the MH Guide, the curriculum for ID students comprises six areas of learning, namely Language, Mathematics, Personal and Social Development, Perceptual Motor Aesthetics and Creativity, and Practical Skills. These areas of learning encompass twelve basic subjects: Language, Mathematics; Computer Learning; Self-Care; General Studies; Perceptual Motor Training; Physical Education; Music, Art and Craft; Home Economics; Design and Technology; and Independent Learning Skills. 41.Relevant to the present purposes, the subject of “Language Learning” for ID students under the MH Guide has generally been understood to be Chinese Language only (being generally the mother tongue of the ID students) but not English Language. Thus, English Language has generally not been taught in ID Schools as a Core subject under the curriculum. Usually, it is only taught at the basic practical level with the learning of simple vocabularies for simple daily use.[22] 42.The ID students are generally not taught English Language as a Core subject because the ID students’ learning capacity and characteristics, in particular in light of the fact that the intellectual development of ID students lags significantly behind that of normally developing students and their usually weaker memory capability. Most mild-ID students are slower in language development and display low competence in comprehension and expression.[23] 43.Moreover, it is EDB’s position that the language meeting ID student’s daily functioning needs and the medium of teaching instruction that helps their intellectual development should be Chinese Language instead of English Language.[24] 44.Hence, although it is the CDC’s position that since 2002, ID Schools should similarly develop their own school-based curriculums by adapting the Central Curriculum and the BECG and SSCG thereunder, the CDC has not published supplementary subject guide for English Language as, consistent with the MH Guide approach, it understands that English Language is generally not taught as a KLA or Core subject in ID Schools. 45.However, it must be noted that it is the Secretary’s evidence and position in this judicial review that it is open to individual ID School to decide to teach English Language as a KLA subject under its own school-based curriculum. If English Language is taught as a KLA subject, given the language learning ability of ID students, more lesson time should be allocated in the curriculum. It is also the Secretary’s position that in so doing, the individual ID school is also to adopt and adapt the Central Curriculum and the BECG or SSCG (as appropriate) to develop its own English Language subject curriculum even though there is no supplementary subject guide for that as provided by the CDC.[25] 46.Indeed, in its Holistic Review of Subjects in Special Schools on Basic Education, the CDC’s Ad Hoc Committee on Special Education Needs emphasised that ID students should be given the same opportunity to learn English Language as mainstream students, and that the adapted curriculum for them should include English Language and schools may choose whether or not to offer the subject based on their students’ abilities and needs. It further states that, if an ID school chooses to do so:
B5. The SAME curriculum and the School’s English Language curriculum 47.In light of the One Curriculum Framework for All principle and the recognition that students with SEN would have to adapt the Central Curriculum to suit their learning needs and capacities, a group of educationalists of the Centre for Advancement in Special Education of the Faculty of Education (“the Centre”) at the University of Hong Kong initiated the “Systematic Approach to Mainstream Education” Network Project on Curriculum Development for Special Schools (“the SAME Project”). The Centre working with nine special schools developed a local curriculum framework for delivering the SAME curriculum for students with SEN in the Hong Kong context (by using the development model derived from the UK). In essence, the curriculum developed under the SAME Project is adapted from the Central Curriculum and the various KLA subject guides published by the CDC.[26] 48.Hence, under the SAME Project, the Centre has published respective supplement guides for each KLA subject specific to students with SEN. These supplement guides are developed by basing on the structure and rationale of the Central Curriculum and adapting the corresponding KLA subject curriculum guides and BECG and SSCG published by the CDC. 49.Specifically, a supplement guide on English Language Education as a KLA subject has been developed and published (“the SAME English Language Education Supplement Guide”) for the teaching of English Language as a KLA subject in ID Schools. The SAME English Language Education Supplement Guide for the levels of Primary 1 to Secondary 3 students is developed by reference to and adapting the English Language Curriculum Guide developed under the BECG and published by the CDC. At paragraph 1.5.1 of this Supplement Guide, it is emphasised that it should be used as a supplement to the English Language Curriculum Guide and should be read in conjunction with that Guide. 50.The School is one of the network special schools involved in the SAME Project. Since the 2007/08 school year, it has been teaching English Language to its pupils as a KLA subject, using the SAME English Language Education Supplement Guide as its curriculum. B6. NET Scheme 51.Under the NET Scheme, public sector schools can apply to the EDB to employ native English-speaking teachers (ie, NETs) to enhance the teaching of English Language and increase students’ exposure to English. The NET Scheme was formally introduced to Secondary schools in the 1998/99 school year and then to Primary schools in the 2002/03 school year. 52.At the Primary level, a school with six operating classes or more is eligible to apply for the provision of a NET under the NET Scheme. However, Primary schools with fewer than six operating classes (“Small Schools”) are not eligible to apply for the provision of a NET under the scheme. They can instead apply for peripatetic support provided by the Advisory Teaching Team (“ATT”) of the NET Section. Advisory Teachers (“ATs”) under the ATT are also NETs.[27] I will say more about peripatetic support later when it becomes relevant in the arguments. 53.At the Secondary level, a school is eligible to apply for the provision of a NET under the NET Scheme. If the school has 40 or more operating classes, it is entitled to the provision of two NETs. Those schools formerly using Chinese as the medium of instruction can opt to fill one of their additional English teachers by a NET.[28] 54.Although how to deploy the use of a NET is a matter entirely for the school, NETs are expected to act as English Language resource persons in schools under the NET Scheme. Teaching duties in schools are expected to be provided primarily by the local English teachers (“LETs”) but not by the NETs. NETs’ primary role is to provide support for the English panel in the schools, which include:
55.NETs therefore assist in the planning and developing school-based curriculum and activities and materials relating to English Language teaching. They also co-plan with teachers for each grade level involved to be specified in the teachers’ timetables. They are also deployed to contribute to the school’s cultural and authentic English Language environment, prepare and present school-based workshops and attend centralised and regional professional activities. B7. The Decision 56.As mentioned above, by a letter dated 20 April 2011 (“the Application Letter”), the School applied to the EDB for the provision of a NET on the basis, among others, that:
57.By a letter dated 26 July 2011 (ie, the Rejection Letter), the EDB rejected the application on the primary basis that under the existing policy (“the Policy”), NET Scheme in Primary schools does not cover ID Schools in view of their special curriculum, different educational needs, and not being included as schools offering English Language as part of the Basic Education curriculum framework. However, the EDB further indicated that the ATT provides peripatetic support to schools not under the NET Scheme and is ready to help the School with similar services. 58.As explained by the Secretary in the evidence filed in this judicial review, the main reason underlying the Policy is said to be that English Language is not, and has not been, taught as a KLA subject in the ID Schools under their special curriculum. There would therefore either be non-teaching or low level or volume of English Language teaching in ID Schools. As a result, it means that a NET would not serve any of the intended purposes or aims of the NET Scheme (where there is no English teaching), or that the provision of a full time NET would not be economically justified and would not be a proper or responsible use and allocation of educational resources.[30] C. THIS JUDICIAL REVIEW 59.The applicant raises a number of grounds of judicial review. As summarised by Mr Dykes (for the applicant), they are as follows:[31]
60.I will deal with each of these grounds in turn. C1. The Discrimination under the DDO Ground 61.The applicant submits under this ground that the Decision is premised on the application of the Policy, which provides effectively blanket exclusion in the provision of NETs to ID Schools. In the premises, the Policy (and hence the Decision) involves:
62.I will look at the challenge based on direct discrimination first. C1.1 Direct discrimination 63.Section 6(a) of the DDO relates to a prohibition of direct discrimination. This section should be read together with section 8. They provide as follows:
64.It is now established[32] (and indeed is common ground) that to establish direct disability discrimination under section 6(a) of the DDO (read together with section 8), the complainant has to show that:
65.Under the comparator question, section 8 of the DDO provides that the comparison has to be made between relevantly “the same or not materially different” circumstances. 66.Mr Dykes’ case under direct discrimination runs as follows. 67.First, he submits that as a matter of proper or remedial construction, section 6(a) (and section 6(b) as well) permit the comparator (ie, “a person without a disability”) to be either a person who does not suffer any disability or a person who does not suffer “the” disability of the complainant. In other words, section 6(a) prohibits not only discrimination between a disabled person and a normal person, but also inter-disability discrimination. Purely for convenience, I will call the comparator without any disability a “without disability comparator”, and a comparator without the disability of the disabled complainant a “disabled comparator”. 68.Second, in the present case and for the purpose of section 8 of the DDO, the relevant comparable circumstances are the studying of English Language as a KLA subject at a similar pace and manner. 69.Third, insofar as the present case is concerned, Mr Dykes says there is direct discrimination of the applicant by reason of the Decision when compared with either a without disability comparator or a disabled comparator. 70.Under the first scenario, the appropriate comparator is a normal mainstream student (ie, a person without a disability) studying English Language as a KLA at a similar pace and manner as the applicant. They are at the same or not materially different circumstances because:
71.However, the Secretary has treated the applicant less favourably in not providing him with a NET to facilitate and enhance his learning of English Language, when the without disability comparator is so provided with. The difference in treatment is because of the applicant’s ID. There is therefore direct discrimination. 72.Under the second scenario, the disabled comparator is a student with a disability but not ID who studies English Language as a KLA at a similar pace and manner as the applicant (ie, a student in a Non-ID School). Again, they are at the same or not materially different circumstances because:
73.However, it is common ground that Non-ID Schools are provided with a NET under the NET Scheme. The applicant is therefore being treated less favourably by the Secretary in not being provided with a NET. The difference in treatment is clearly based on the applicant’s ID. There is thus also direct inter-disability discrimination. 74.Ms Wong opposes this ground only in relation to the comparator question. She submits that, under this question: (a) no relevant comparison can be made as the applicant and the suitable comparator are not in the same or not materially different circumstances; and (b) in any event, even if a relevant comparison can be made, the applicant receives no less favourable treatment as the School is offered peripatetic support. She also submits that, on a proper construction of section 6(a) of the DDO, the suitable comparator can only be a without disability comparator but not a disabled comparator. 75.Ms Wong however accepts that, if the applicant can show that a relevant comparison can be made and that there is less favourable treatment under that comparison, the difference in treatment is made because of the applicant’s disability. In other words, the Secretary would not oppose this ground on the causation question. 76.In the premises, under this ground of challenge, the court is only concerned with the comparator question, and for that, there are three issues that call for determination in light of the contentions raised:
77.I will now turn to these issues. C1.1.1 Whether section 6(a) of the DDO covers also inter-disability discrimination 78.This is a question of construction. 79.The wording of section 6(a) stipulates that a comparison is to be made between the treatment given to the complainant of disability discrimination with the treatment given to another person “without a disability”. As submitted by Ms Wong, the courts in Hong Kong have construed that the phrase “without a disability” plainly means “without any disability”,[33] ie, a without disability comparator. Thus, on a plain and literal reading of section 6(a), the suitable comparator in the present case has to be a student without any disability. 80.Mr Dykes however argues that the court should adopt a construction to interpret the words “without a disability” to mean “without the disability” to reflect what he says to be the obvious intention of the DDO. In other words, section 6(a) should, on proper construction, permits what leading counsel describes as “inter-disability” comparison where, other than a person without any disability, the comparator may also be one who is suffering a disability different from the complainant’s. 81.Mr Dykes submits that this construction can be achieved in two ways. 82.First, he submits that section 7(2) of the Interpretation and General Clauses Ordinance (Cap 1) (“the IGCO”) provides that words and expressions in singular to be taken as including words and expressions in plural (and vice versa).[34] Thus, applying section 7(2) of the IGCO, the words “a disability” should be read to include “any disabilities”, and this would enable an inter-disability comparison. 83.With respect, I cannot see how section 7(2) of the IGCO would assist Mr Dykes’ contended “inter-disability” construction. Leading counsel’s above submissions have not taken into account the word “without” preceding the words “a disability” in section 6(a) of the DDO. Once the word “without” is read together with “a disability” or, (as contended) “any disabilities”, it would still clearly mean that the comparator has to be someone without any forms of disabilities. It therefore would not permit a comparator to be someone with a form of a disability other than that of the complainant. 84.Second, Mr Dykes submits that the court should adopt a rectifying or remedial construction of section 6(a) to arrive at the “inter-disability meaning, as only that would reflect what he says to be the clear intention of the legislature in enacting the DDO. It is Mr Dykes’ contention that the legislature intended the DDO to provide a comprehensive prohibition against disability discrimination, and it would be surprising if not absurd to suggest that section 6(a) is intended not to cover inter-disability discrimination. Mr Dykes further says this is underlined by the legislative history that the drafting of the DDO was based on the Australian Disability Discrimination Act 1992 of the Commonwealth of Australia (“DDA”), which itself prohibits inter-disability discrimination. 85.Mr Dykes’ submissions on remedial construction are echoed by Mr McCoy for the EOC. In particular, it is EOC’s position that the DDO must be intended to provide for and cover prohibition of inter-disabilities discrimination, as has been expressively set out at paragraphs 4.3.1 and 6.1.3.2 of the EOC’s published Code of Practice on Education (“the Code on Education”):[35]
86.In this respect, Mr Dykes and Mr McCoy have both further drawn the court’s attention to the fact that:
87.Again, with respect, I am not persuaded by these submissions. 88.It is well established that for the court to adopt a remedial or rectifying construction, the court has to be “abundantly sure” of three matters, namely:[37]
89.With that in mind, I accept Ms Wong’s submissions that it is far from being abundantly sure that the three requirements are satisfied:
90.For these reasons, it is not open to the court to adopt the rectifying construction to interpret section 6(a) of the DDO as submitted by the applicant and the EOC. 91.I therefore conclude that, on a proper construction, section 6(a) (and similarly also section 6(b)) of the DDO does not permit an inter-disability comparison, and the words “a person without a disability” means a person without any disability. 92.In other words, in the present case, it is not permissible for the applicant to seek to establish discrimination by comparing with another person who is also suffering from a disability other than ID. C1.1.2 What are the relevant circumstances for a relevant comparison in the present case 93.Ms Wong’s submissions under this question can be summarised as follows. 94.The requirement to compare a complainant of discrimination with the comparator in the relevantly “same or not materially different circumstances” is to reflect the well accepted underlying general principle of “treating like cases alike”.[42] There is no discrimination when cases are relevantly different, as material differences can and do often exist between person under disabilities and those who are not, to achieve equality between them often means that different treatments are sometimes justified. 95.Further, Ms Wong submits authorities show that in the context of making a comparison under sections 6(a) and 8 of the DDO, the relevant circumstances should include the supposedly less favourable treatment complained of.[43] Thus:
96.It follows that in ascertaining whether there is any, and (if so) who is the, comparator in the same, or not materially different, relevant circumstances, regard must be had to the supposedly less favourable treatment and the circumstances attending such treatment. 97.In the present case:
98.Insofar as the mainstream English Language curriculum is concerned, for the present purposes, Ms Wong accepts that one could equate that with the English Language Curriculum Guide.[44] 99.In the premises, Ms Wong submits that the appropriate comparator in the present case should be a Primary school student without any disability attending a mainstream school who is pursuing an adapted English Language curriculum of the nature and complexity and at the level and of the volume administered in an ID school or not at all. This is so because the relevant circumstances are that the applicant and the comparator should be studying the same or materially not different English Language curriculum. 100.Ms Wong then contends that the English Language Curriculum Guide is materially different from the SAME English Language Education Supplement Guide in terms of its nature, breadth, depth and intensity. The applicant’s circumstances are therefore also materially different from that of the comparator’s. In other words, the applicant’s relevant situation is simply not analogous to the situation of the comparator who is treated differently.[45] In the premises, there can be no or no true section 6(a) comparison between the treatment given to the applicant and that given to the comparator under the NET Scheme. 101.In order to show that the two “curriculums” are materially different, in the course of the hearing, Ms Wong and her learned junior and legal team have efficiently produced a table comparing them in respect of the “Learning Targets and Language Skills for Key Stage (Primary 1 - 3). 102.With the aid of the table, Ms Wong has also taken me to some parts of the respective guides at the hearing to demonstrate and emphasise the fact that the SAME English Language Education Supplement Guide covers at most only one-third of the contents as that of the English Language Curriculum Guide, and the former’s stated learning objectives are much less than that as intended by the latter. Leading counsel has further reminded the court that while the Primary students in the mainstream schools pursuing the English Language Guide have to sit for the Territory-wide System Assessment (“TSA”) to assess their achievements under the curriculum, the ID students, including the applicant, are not required to do so. 103.Ms Wong therefore concludes that, in the absence of the comparison mandated by sections 6(a) and 8, it is not possible to say whether the applicant has been treated less favourably than the comparator for the purpose of section 6(a), so that a case of direct discrimination cannot and has not been made out.[46] 104.As mentioned above, Mr Dykes for the applicant on the other hand submits that the appropriate comparator would be a person without a disability being taught English Language as a formal KLA subject but at a similar pace and manner as the applicant, studying at a mainstream school. Under this formulation, Mr Dykes’ fundamental submissions is that the applicant’s studying of English Language under the SAME English Language Education Supplement Guide should, for the purpose of the relevant comparison, be treated and regarded as at a similar pace and manner as the mainstream student studying at the mainstream school. In other words, it is Mr Dykes’ contention that the SAME English Language Education Supplement Guide is not materially different from the English Language Curriculum Guide for that purpose. 105.In support of the submissions, Mr Dykes and his learned junior together with their legal team have with similar efficiency also produced an 18-page table in the course of the hearing seeking to demonstrate that the two curriculums as a matter of principle are not materially different. 106.There is no dispute that the question of what is the relevant comparable circumstances should be answered in the proper context of the particular disability discrimination complaint made in this application. As observed by Lord Nicholls in Shamoon v Chief Constable of the RUC [2003] ICR 337 (HL) at paragraph 12, the formulation of the comparators in a discrimination case has to be considered in the context of the particular issue under challenge before the court. 107.In the present case, the relevant context for examining the comparator question is in my view the overall regime and policy in relation to the development of curriculum in English Language education as a KLA subject and the nature and use of NETs. When the parties’ above contentions on the respective comparators are considered under this context, the crucial and real question that the court needs to look at is whether the SAME English Language Education Supplement Guide can be regarded in nature and specie as materially not different from the English Language Curriculum Guide. 108.For that, I find the following (which is borne out by the evidence I have set out in section B above) to be highly relevant in prescribing the context:
109.When considered in the above context, I am of the view that the SAME English Language Education Supplement Guide should be regarded in nature as not materially different from the English Language Curriculum Guide. My reasons are these:
110.Ms Wong has also sought to contend that these two curriculums cannot be regarded as not materially different because (a) the context of the NET Scheme is that it was originally designed with the intensity and scope of the English Language Curriculum Guide in mind; (b) the fact that mainstream students are required to sit the TSA to assess their achievements of the learning objectives under the mainstream curriculum, where ID students are not required to do so; and (c) the CDC is still in the stage of developing and recommending the best and most appropriate English Language curriculum for ID students.[49] 111.I do not think any of these matters assist Ms Wong. 112.The contention that the NET Scheme was originally designed with reference to the English Language Curriculum Guide only reflects and underlines the EDB’s position that a NET is intended to be best and fully utilised by a school following the English Language Curriculum Guide. It does not then mean that the SAME English Language Education Supplement Guide should be regarded (subject to the above qualifications at paragraph 109(5) above) in nature as materially different from the English Language Curriculum Guide for the reasons I have explained above. The mere fact that a NET cannot be used to the fullest extent as initially envisaged does not then mean that the curriculum he is asked to assist in an ID School is in nature or specie a different curriculum from the mainstream curriculum. 113.Similarly, the mere fact that ID students are not required to take the TSA does not affect my considerations above. TSA is designed to assess students’ achievements under the English Language Curriculum Guide. As I said above, it is correct that the SAME English Language Education Supplement Guide covers in terms of contents and breadth appreciably less than those in the English Language Curriculum Guide. It is therefore understandable as to why ID students studying this curriculum are not required to sit the TSA. However, it does not follow that these two curriculums should be treated as different in nature for the present purposes in light of the contextual considerations I have above discussed. 114.Finally, the fact that the CDC is still in the process of developing what it may regard as the most appropriate English Language supplementary guide for ID students may underline the commendable effort on the Administration in seeking to respond to the ID Students’ SEN and provide what it believes would be the best form of education to them. It may even be the case that the CDC would regard the then developed supplementary guide a more suitable curriculum for ID students than the SAME English Language Education Supplement Guide developed by the Centre. However, that does not then mean that the SAME English Language Education Supplement Guide is different in nature from the English Language Curriculum Guide, in particular given that this further special curriculum supplementary guide should and would (just as the SAME English Language Education Supplement Guide) similarly be adapted from the BECG and the English Language Curriculum Guide under the “One Curriculum Framework for All” principle.[50] 115.I therefore reject the Secretary’s submissions that the applicant is in a materially different circumstances (insofar as the learning of English Language as a KLA subject is concerned) from the comparator, and thus no meaningful comparison as required under sections 6(a) and 8 of the DDO can be made. 116.The next issue I then have to look at is whether the applicant is given a less favourable treatment when compared with the comparator. C1.1.3 Is there less favourable treatment 117.Ms Wong submits that the applicant is not given a less favourable treatment even though he is not provided with a NET because the School was offered the alternative of peripatetic support service. 118.The Secretary’s case as to why a peripatetic support is as good as the provision of a NET for the School (and generally for ID Schools) is as follows.[51] 119.It is the Secretary’s evidence that the EDB will offer and provide (and has in fact provided) peripatetic NET support to ID Schools upon request on a case-by-case basis to support its English activities, as it is available to Small Schools. 120.There is no formal procedure for ID Schools to apply for peripatetic support from the NET Section. The Principal of an ID School may make a request to the NET Section and details of the services will be worked out subsequent to on-site school visits by ATs of the NET Section taking into consideration the actual needs and requirements of the requesting school. 121.As mentioned above, Small Schools are mainstream schools having less than six operating classes. For Small Schools, it is considered more cost-effective for the ATT to provide peripatetic support to them rather than providing them with a full-time NET because of the small number of classes, the limited extent to which NETs can carry out their duties as English Language resource persons, and the reduced level of resources and support as a result.[52] 122.The peripatetic support for Small Schools includes assigning an AT, who is also a NET, to take care of each Small School to work out the focus of support in a specific school year. The aim of providing peripatetic support to Small Schools is to achieve objectives similar to the ones to be fulfilled by a NET assigned to a mainstream Primary school. The actual support is tailored to meet the needs of each individual Small School, subject to the professional advice of the relevant AT and the mutual agreement between the school concerned and the ATon the scope, nature and intensity of the support, but with the objectives to be achieved under the NET Scheme in mind. 123.Although schools may have different levels of interest in and requests for peripatetic support after the initial contact made by the ATs, most schools have shown very positive responses and welcome the regular support of an AT, which may last up to two to three years. Some of the Small Schools have received up to 15 visits by an AT within a school year. In addition, the ATs make regular contact with schools to provide advisory service through telephone calls and emails. The support offered is diverse in its nature, scope and intensity. The designated AT would meet with the English Panel of the relevant school and discuss with the Panel the school support plans, which include organising school-based teacher development workshops, conducting classroom teaching, and organising school-based English Days and English Camps. The support focuses vary across schools, depending on the needs of individual Small Schools, and may include support for resource development, co-teaching with the LETs in developing reading skills and strategies at a particular class level or Key Stage, and collaborating with the LETs in designing activities to cater for the learners’ diversity. 124.Peripatetic support services that may be provided to a Small School include but are not limited to the following:
125.It is the Secretary’s position that, depending on the individual needs and circumstances of the particular Small School, the level of services and support that a peripatetic AT assigned (who is also a NET) can offer, and what can be achieved and provided by a peripatetic NET are in effect similar to those by a full-time NET. 126.Similarly, on a case-by-case basis, peripatetic support will be (and has indeed been) offered and provided to ID Schools though they are not eligible to apply for the provision of a full-time NET like Small Schools. If the circumstances require and justify it, the full range of support stated above can (and will) also be provided to ID Schools, which can benefit from whatever services a peripatetic NET can provide as the circumstances (in particular in relation to its English Language teaching or activities) of the particular ID school require, in the same way as a full-time NET can benefit a mainstream school or a peripatetic NET (the AT) can benefit a Small School. The exact scope, nature and intensity of support to be offered to the individual ID Schools will be subject to the professional advice of the ATs concerned and the mutual agreement between the schools and the ATs based on the abilities and needs of the students. 127.AT support provided to a Small School (or ID school) may last up to two to three years and some schools may receive up to 15 visits by an AT within a school year. Moreover, ATs make regular contact with schools to provide advisory service through telephone calls and emails. The designated AT would meet with the English Panel of the relevant school and discuss with the Panel the school support plans, which include organising school-based teacher development workshops, conducting classroom teaching and organising school-based English Days, English Camps etc. The support focuses vary across schools, depending on the needs of each individual school that has been provided with peripatetic support.[53] 128.One can therefore see from the above that the Secretary’s case on why peripatetic support instead of a NET should be provided to an ID school (such as the School) which teaches English Language as a KLA subject is premised primarily on the basis that the ID school is akin to a Small School. This in turn, as further explained by Ms Wong in her submissions, is premised on the position at the total number of hours of English teaching that the School would have for its students is similar to that of a Small School. 129.With respect to Ms Wong, I do not think it is an appropriate way of comparison for the present purpose. This is so since, as I have mentioned above, it is the Secretary’s own case that a NET’s primary duty under the scheme is not to teach. In the premises, the “benefit” that a NET can offer to a school should not be simply measured by reference to the actual time of teaching the school is required of him. Such benefit must also be measured qualitatively instead of merely quantitatively by reference simply to the total hours of teaching a NET is required to do.[54] 130.Moreover, in my view, it is a matter of common sense that, given their nature, the roles of a NET in a school as mentioned at paragraphs 54 and 55 above are better served and achieved by having a full time NET than an AT who visits the school up to 15 times within a school year. 131.One also has to remember that the underlying rationales of the NET Scheme are to, among others, increase the exposure of students to authentic English speaking environment and to enhance the English Language teaching by helping the school to develop their own school-based curriculums and teaching materials. As further stated in the Secretary’s evidence, the objectives of implementing the NET Scheme in Primary school are to:[55]
132.These roles and objectives will again be obviously more comprehensively and better served by a full time NET assigned to an ID School than only having a part-time AT visiting the school from time to time on a yearly basis.[56] Again, the benefit of a full time NET in assisting these fundamental matters cannot be fully and properly reflected by looking simply at the number of hours English lessons the school may have in its class timetables. 133.As the School’s principal Ms Ho How Sim puts it at her 1staffidavit at paragraphs 13 - 16:
134.In any event, insofar as the present case is concerned, the comparison of the School as that with a Small School is also not entirely appropriate:
135.In the premises, I reject Ms Wong’s above submissions that there is no less favourable treatment in the present case in not providing a NET. C1.1.4 Conclusion on direct discrimination 136.For all the above reasons, I am satisfied that the Decision amounts to direct discrimination based on the applicant’s ID, which is prohibited under section 6(a) of the DDO. The Decision is therefore unlawful. The School’s NET Application should be remitted to the Secretary for reconsideration, taking into account the court’s above findings. 137.However, I must mention that, as emphasised by Mr Dykes for the applicant and Mr McCoy for the EOC, it is never their case that the discrimination is a deliberate one on the part of the Administration or the Secretary. They acknowledge that the Administration generally and the Secretary specifically have always been acting in good faith in formulating the Policy and implementing the NET Scheme. They also wish to put on record that the efforts by the Secretary and EDB over the years in supporting and facilitating the provision a comprehensive education to ID students are much recognised and appreciated. C1.2 Indirect Discrimination under section 6(b) of the DDO 138.Indirect discrimination is relied on by the applicant as an alternative ground in case he fails in showing direct discrimination. 139.Given that I have in the above accepted the applicant’s direct discrimination ground, it is strictly speaking unnecessary for me to deal with this indirect discrimination ground. This is particularly so as Ms Wong’s primary contention under this ground is the same as she has advanced above under the direct discrimination ground: that there cannot be a relevant and meaningful comparison between the applicant and the comparator as similarly required under sections 6(b) and 8 of the DDO. Thus, if the applicant were not successful under the direct discrimination ground because there cannot be a meaning relevant comparison, he must similarly fail under the indirect discrimination ground. 140.However, in deference to the submissions made by the parties under this ground, I would deal with them as briefly as I could as follows. 141.Section 6(b) of the DDO prohibits indirect discrimination based on disability. It provides as follows:
142.Thus, for the applicant to succeed under section 6(b) of the DDO, he has to show that:
143.Mr Dykes says the applicant’s case clearly shows that all the above criteria are met. 144.For the Secretary, Ms Wong has made it clear that she could not argue that the section 6(b)(i) criterion is not satisfied if the applicant can establish the other criteria. However, it is her contentions that the applicant must fail under this ground as he cannot show that the requirement or condition criterion and the sections 6(b)(ii) and (iii) criterion can be met. 145.In light of these contentions, I would only look at the contested criteria. C1.2.1 The requirement or condition criterion 146.It is common ground that the notion of “requirement or condition” for the purpose of section 6(b) involves something over and above that which is necessarily inherent in providing the goods or services: Waters v Public Transport Corporation (1991) 173 CLR 349 at 361, per Mason CJ and Guadron J; per Brennan J at 377; Catholic Education v Clarke (2004) 138 FCR 121 at paragraphs 100 - 104. 147.Mr Dykes’ submissions that the requirement or condition criterion is met in the present case are as follows. 148.Under the Policy (and hence the Decision), if the applicant is to have the benefit of a NET in his study of English Language as a KLA subject:
149.The Secretary therefore applies by way of the Policy and the Decision the Requirement or the Condition on the applicant. 150.Ms Wong however submits that the Requirement or the Condition as formulated by Mr Dykes is “extremely convoluted and serves only to confuse”. Leading counsel says that instead the real and only relevant requirement or condition applicable under the Policy is simply that the school to which the NET Scheme is made available should teach and its students should learn English under the mainstream curriculum, ie, the English Language Curriculum Guide. This requirement or condition cannot be regarded as the “requirement or condition” used in section 6(b) since:
151.I agree that the Requirement or the Condition is not the “requirement or condition” used in the section 6(b) sense. 152.Under section 6(b), the “requirement or condition” has to be one which the “discriminator” applies to “that other person” (ie, the disabled person, the applicant in the present case) and also equally “to a person without a disability” (ie, the comparator). However, the Requirement or the Condition as formulated is of a nature incapable of being applicable to the comparator. This is so as there is no question that a normal student (ie, the without a disability comparator) is or would be required to either “give up all the special facilities and professional supports catered for ID students” or study “in an ID School which teaches English Language as a KLA Subject under the English Language Curriculum Guide”. Thus, the formulations made by Mr Dykes do not properly fall within “the requirement or condition” as intended under section 6(b). This to a certain extent also follows from Ms Wong’s above submissions. C1.2.2 Conclusion on indirect discrimination 153.Given that the requirement or condition criterion is not met, the applicant cannot establish a case of indirect discrimination. 154.This ground should therefore fail on this basis alone. 155.Further, in the absence of a properly formulated requirement or condition under section 6(b), it is in my view inappropriate and unnecessary for the court to further consider the questions of justification and the inability to comply under the sections 6(b)(ii) and (iii) criterion. These questions can only be properly and realistically assessed and answered by reference to the true nature of a properly formulated requirement or condition. 156.I will therefore dismiss this ground of judicial review. C2. The Unconstitutionality Ground 157.As submitted by Mr Dykes, this is again only an alternative ground relied on by the applicant. He does not need to resort to the arguments under this ground if he is successful under the Discrimination under the DDO Ground. 158.Since I have concluded above that the Decision amounts to direct discrimination under section 6(a) of the DDO, it is therefore not necessary for me to consider this ground. 159.This is particularly so as the main submissions relied on by Ms Wong in saying that the Decision is not unconstitutional are, similar to the submissions made in the Discrimination under the DDO Ground, that no relevant comparable circumstances can be made between the applicant and the proper comparator. Thus, if I had rejected the direct discrimination ground above, I would have accepted Ms Wong’s arguments that there were sufficient relevant different circumstances between the applicant and the comparator to warrant the subject differential treatment. In other words, we are not comparing like with like. This would have similarly rendered this constitutional challenge unsuccessful. 160.However, given that the parties have made submissions on this, I would for completeness sake deal with this briefly. 161.It is the applicant’s case that the Policy infringes his right to equality as protected under Article 25 of the BL and Article 22 of the BOR (corresponding to Article 26 of the ICCPR).[58] These Articles provide as follows:
162.The court’s approach when considering whether there is infringement to the right to equality has been explained by Li CJ in Yau Yuk Lung, supra, at paragraphs 19 - 22 as follows:
163.The above two-stage test has been further considered and explained by Ma CJ in Fok Chun Wa, supra, at paragraphs 58 - 59 as follows:
164.Hence, the law does not treat differential treatment between two groups of person as discrimination if there is sufficient relevant difference between them to justify the differential treatment. As observed by Ma CJ in Fok Chun Wa, supra, in considering this particular question of whether there is sufficient difference to justify differential treatment, the court usually would also have to take into account the justifications proffered by the decision maker to show that:
165.In the present case, the Secretary seeks to answer these questions of justification affirmatively as follows:
166.The fundamental proposition put forward by the Secretary is effectively that the differential treatment (ie, not to provide full time NETs to ID Schools even if they are teaching English Language as a KLA subject) is to achieve the legitimate aim of “saving costs”. See also Cheung Wai Mun Rosana’s 2nd affirmation at paragraphs 46 and 53 and paragraph 134(2) above. 167.As pointed out by Mr Dykes, in light of the number of ID Schools in Hong Kong that would or could teach English Language as a KLA subject to their students, the estimated amount of costs that can be saved for each year is in the region of $2 million or so.[59] The annual expenditure spent by the Government on education (for the year of 2010 - 2011) is about $60,719 million.[60] The saving of costs amounts to about 0.003% of the total spending. 168.However, as observed by Ribeiro PJ in Kong Yun Ming v Director of Social Welfare (2013) 16 HKCFAR 950, paragraph 49, saving costs would not in itself be a legitimate aim to justify a restriction on a constitutional right. The purpose and effect of the cut in expenditure would have to be taken into account before it can be properly seen whether the saving of costs constitutes a legitimate societal aim and that aim is rationally connected by the challenged measure. 169.In the present case, the Secretary has not explained in the evidence what are the purpose and effect of saving those costs in excluding ID Schools from the NET Scheme. It is not the Secretary’s case that the saving is necessary in order to maintain the sustainability of the NET Scheme. Indeed, given the almost infinitesimal savings as mentioned above, it cannot be readily seen what legitimate purpose and effect the savings could result to justify a restriction on the constitutional right to equality. 170.In the premises, I further accept Mr Dykes’ submissions that the Secretary has fail to demonstrate what is the legitimate societal aim the Policy (in excluding ID Schools from the NET Scheme) could seek to achieve, or that the Policy is rationally connected to any legitimate aim. For the same token, the Secretary has also not been able to show that there is sufficient relevant difference between the applicant and a mainstream student to justify the differential treatment. 171.In the premises, if the court has to determine on this ground, I would hold that the Decision is inconsistent with Article 25 of the BL and Article 22 of the BOR insofar as it applies the Policy to generally exclude ID Schools under the NET scheme even if they teach English Language KLA subject and adopt a curriculum which is not materially different from the mainstream curriculum. C3. The Fettering of Discretion Ground 172.This ground as set out at paragraphs 67 - 73 in the Amended Form 86 is in gist as follows:
173.The Secretary however says that, in making the Decision, she has taken into account the individual circumstances relevant to the School’s NET Application. In the 2nd affirmation of Chan Tsui Wah, she has explained at paragraphs 82 and 87 what the EDB had considered in making the Decision. These have been helpfully summarised by Ms Wong in her skeleton at paragraphs 75 - 76 as follows:
174.Mr Dykes has submitted that these are effectively ex post facto justifications and the court should not lightly accept that. 175.The court in assessing whether evidence filed by the decision maker in explaining a decision under a judicial review challenge is a clarification of the original reasons for the decision (which is permissible) or amounts to ex post facto justifications (which is generally not permissible) would take into account the following:[63]
176.Bearing these considerations in mind, I accept what have been described by Ms Chan are not ex post facto justifications but only clarifications of the original reasons for the Decision. This is so because:
177.In the premises, I am satisfied that the Secretary in making the Decision had considered the individual circumstances and merits of the School’s NET Application and came to the view that there was nothing in the application pertinent to the School that justified a departure from the Policy. In other words, the Secretary rejected the application not because she had simply blindly and rigidly applied the Policy. 178.This ground of challenge should fail.[66] C4. The Relevant and Irrelevant Considerations Ground 179.Under this ground, it is contended by the applicant that:[67]
180.These complaints are in my view without merits. 181.In relation to the complaints regarding failure to take into account relevant considerations:
182.I therefore refuse this ground of judicial review. D. OTHER OBSERVATION 183.Finally, I need to mention certain undisputed facts relating to the Red Cross Margaret Trench School (“MTS”) which have been relied on by the applicant in this application. The facts are these.[70] 184.MTS is a Non-ID school. However, most of its students in fact also suffer from some form of ID. As at 2013, it had six operating classes at its Primary Section and five operatingclasses at its Secondary Section. Further, out of the 103 students taught at MTS, 98 of them also suffer from ID (ranging from mild to severe grade) and, but for their major primary physical disabilities, they would have been referred to an ID school. 185.At the same time, MTS was one of the nine special schools participating in the SAME Project. Since 2006/07 school year, MTS has been using the SAME English Language Education Supplement Guide to teach its students (including those with ID) English Language as a KLA subject. Since 2001, MTS has been continuously applying and receiving full time Secondary NET support from the EDB. Since 2008/09 school year, upon its application to the EDB, MTS has also been receiving full time Primary NET support under the NET Scheme. 186.The applicant relies on the above facts in support of his case on inter-disability discrimination, in that there has been differential treatment to him on a comparison with those physical disability cum ID students in MTS who, despite being in an ineligible school (under the Policy), still have access to teaching by the NET.[71] 187.Ms Wong for the Secretary responded to these facts by submitting that the MTS case represents obviously a mistake where there has been a misapplication of the Policy. This is so, says Ms Wong, as the MTS clearly does not fall within the Policy as it does not use the English Language Curriculum Guide to teach its students. 188.Since I have concluded above that section 6 of the DDO is not intended to cover inter-disability comparison, it is indeed unnecessary for me to determine whether that fact that MTS has been successful in its NET application is a result of a mistake. However, if I am required to look into this, I would be inclined to conclude that it has not been established to my satisfaction that it is a mistake. 189.This is so as, firstly notwithstanding the voluminous evidence filed by the Secretary, it has not been deposed to in any of the affirmations or affidavits that this is a mistake and as to how the mistake came about. Thus, as a matter of evidence, there is nothing in support of the submission of a mistake. The suggestion that this is a mistake is only raised by way of submission in Ms Wong’s skeleton. Further, the lack of any affirmative evidence to say this is a mistake must also be viewed against the position that the applicant in support of his application has in August and November 2013 already relied on the fact that MTS (albeit also using the SAME English Language Education Supplement Guide) has been provided with a full-time NET.[72] This makes it even more difficult to understand as to why, if this is indeed a mistake, the Secretary has not filed any evidence to point it out. 190.Second, Ms Wong emphasises in her submission that, notwithstanding the lack of any affirmation evidence to support it, the mistake is an obvious one since it is clearly inconsistent with the Policy. However, this must be considered against the Secretary’s own position that (as discussed above) there is still residual discretion within the Policy for the Secretary to consider the individual circumstance of each of such applications by a special school. When so considered, I am unable to agree that this fact must be so unequivocally a result of a mistake simply because on the face of it, it is inconsistent with the Policy. 191.But as I said above, I do not need to come to a firm conclusion on this for the present purposes. E. CONCLUSION 192.For the above reasons, I allow the judicial review on the ground that the Decision is unlawful as it amounts to a direct discrimination prohibited under section 6(a) of the DDO, or alternatively, the Decision is unconstitutional as it is inconsistent with the right to equality as protected under Article 25 of the BL and Article 22 of the BOR. 193.I will therefore quash the Decision and remit it back to the Secretary for reconsideration in light of the court’s finding in this judgment. 194.Although the applicant is successful in this application, I must emphasise again that it is not the applicant’s position that the Secretary had intended to act discriminatorily in formulating the Policy and making the Decision. The applicant and the EOC have in fact expressed through counsel their appreciation of all the works that the EDB and the Secretary have carried out to facilitate the provision of a comprehensive education to ID students. 195.Lastly, I must thank counsel and their legal teams for the invaluable assistance they have rendered to this court. 196.There is no reason why costs should not follow the event. I therefore make an order nisi that costs of this application be to the applicant to be taxed if not agreed with certificate for two counsel. The applicant’s own costs should be taxed in accordance with legal aid regulations.
Mr Philip Dykes SC, leading Mr Valentine Yim, instructed by Yip, Tse & Tang (assigned by Director of Legal Aid), for the applicant Ms Lisa Wong SC, leading Mr Mike Lui, instructed by Department of Justice, for the respondent Mr Gerard McCoy SC, leading Ms Denise Souza, instructed by Equal Opportunities Commission, as Amici Curiae [1] The learned judge in a written decision dated 10 January 2012 explained why he would be inclined to grant leave in this matter if and when amendments had been properly made to the then original Form 86. [2] There are all together some 19 affirmations or affidavits filed by the applicant and 18 by the Secretary. [3] For examples, these include hearing impairment, visual impairment, behavioural difficulties, specific learning difficulties in reading and writing and speech and language impairment. [4] SeeChan Tsui Wah’s 2nd affirmation at paragraph 13. [5] See the Department of Justice’s letter dated 8 March 2015 to the applicant’s solicitors. [6] The CDC is an advisory committee set up to advise the Administration through the Permanent Secretary for Education on all matters relating to the curriculum development for the school system from kindergarten to the sixth form in Hong Kong. [7] See, for example, paragraphs 2, 3, 7 - 10 of the Summary of the CDC 2001 Report; affidavit of Dr Wong Kai Hung at paragraphs 6 - 10. [8] Dr Wong Kai Hung’s affidavit at paragraph 10. [9] Dr Wong Kai Hung’s affidavit at paragraph 14. [10] Dr Wong Kai Hung’s affidavit at paragraph 9. [11] Dr Wong Kai Hung’s affidavit at paragraph 13. [12] Full title as the “Basic Education Curriculum Guide – Building on Strengths (Primary 1 to Secondary 3)”. [13] Entitled: “Senior Secondary Curriculum Guide – the Future is Now: from Vision to Realisation (Secondary 4 - 6). [14] Dr Wong Kai Hung’s affidavit at paragraph 16. [15] See paragraph 1.1 of Booklet 1 of the BECG. [16] See Dr Wong Kai Hung’s affidavit at paragraph 22. [17] See page 8 of Booklet 1 of the SSCG. [18] See Dr Wong Kai Hung’s affidavit at paragraph 26. [19] See Cheung Wai Mun Rosana’s 2nd affirmation at paragraph 16. [20] See Chan Tsui Wah’s 2nd affirmation at paragraphs 45, 72 and 73. [21] See Chan Tsui Wah’s 2nd affirmation at paragraph 45. [22] Dr Wong Kai Hung’s affidavit at paragraphs 28 - 39. [23] Dr Wong Kai Hung’s affidavit at paragraphs 43 - 48. [24] Dr Wong Kai Hung’s affidavit at paragraphs 56 - 57. [25] See the Secretary’s skeleton submissions at paragraph 41; Dr Wong Kai Hung’s affidavit at paragraphs 60 - 62; Chan Tsui Wah’s 2nd affirmation at paragraphs 14 - 15. [26] See Li, Tse and Lian, “The SAME Project: Achieving ‘One Curriculum for All’ in Hong Kong”, published in the International Journal of Whole Schooling (Vol 5, No 2 of 2009), pages 28 - 32 (exhibit “TCY-1”). [27] Cheung Wai Mun Rosana’s2nd affirmation at paragraphs 45 - 46. [28] Cheung Wai Mun Rosana’s2nd affirmation at paragraph 47. [29] Cheung Wai Mun Rosana’s2nd affirmation at paragraphs 48 - 51. [30] See Dr Wong Kai Hung’s affidavit at paragraphs 90 - 91. [31] See paragraph 21 of the applicant’s skeleton. [32] See: M v Secretary for Justice [2009] 2 HKLRD 298 (CA) at paragraph 45, per Tang VP (as he then was); Tong Wai Ting v Secretary for Education (HCAL 73/2009, 24 August 2009, per A Cheung J) at paragraph 72 following M v Secretary for Justice. [33] See: L v Equal Opportunities Commission (DCEO 1/1999, 13 November 2002) at paragraphs 56 - 61, per HH Judge Muttrie; M v Secretary for Education (DCEO 8/2004, 16 July 2007) at paragraph 158, per HH Judge Lok (as the learned judge then was). [34] Section 7(2) of the IGCO provides “Words and expressions in the singular include the plural and words and expressions in the plural include the singular.” [35] Section 65 of the DDO provides that the EOC may issue codes of practice containing practical guidance as it thinks fit for the purposes of, among others, the elimination of discrimination and the promotion of equality of opportunity between persons with a disability and persons without a disability generally. Such code of practice, if issued, has to be gazetted and laid before the LegCo, and the LegCo may, be resolution, require the code be amended in any manner consistent with section 65. [36] See: EOC’s letter dated 8 June 2001 to the Assistant Legal Adviser to the LegCo, as annexed to the Report from the LegCo Secretariat; the EOC’s response to the Assistant Legal Adviser’s proposal to amend paragraph 6.1.3.2 of the Code of Practice to remove the possibility for “inter-disability comparison” as set out in “EOC’s Comments and Counter Proposals Regarding Amendments to the Code” attached to the letter. [37] Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592, per Lord Nicholls, as adopted by the CFA in Chan Pun Chung v HKSAR (2000) 3 HKCFAR 392 at 407I - 408G, per Chan PJ. [38] Section 6(c) of the DDO provides that a person discriminates against another person in any circumstances relevant for the purposes of any provision of the DDO if “on the ground of the disability of an associate of that other person he treats him less favourably than he treats or would treat a person without such a disability”. (emphasis added) [39] Its purpose is to offer “practical guidelines” (section 65(1)) and pursuant to section 65(13), it is admissible as evidence but only to show what should be the good practice in terms of equality and elimination of discrimination, harassment and vilification. [40] See Amended Form 86, paragraphs 57(4) - (6). [41] See Official Record of Proceedings, 3 May 1995, on the Secretary for Health and Welfare’s speech in moving the second reading of the Disability Discrimination Bill. [42] See: Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888 at paragraph 5, per Li CJ; Secretary for Justice v Yau Yuk Lung (2007) HKCFAR 355 at paragraph 19, per Li CJ adopting Ghaidan v Godin-Mendoza [2004] 2 AC 557 (HL) at 556C; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 56 - 59, per Ma CJ; Raza v Chief Executive in Council [2005] 3 HKLRD 561 at paragraphs 111 - 113, per Hartmann J (as he then was); Zarb Adami v Malta (2006) 44 EHRR 3 at paragraph 71; R (Carson) v Secretary of State for Work and Pensions [2005] 1 AC 173 at paragraphs 10 and 14, per Lord Hoffmann; Matadeen v Pointu [1999] 1 AC 98 at 109B - D, per Lord Hoffmann; Thlimmenos v Greece (2001) 31 EHRR 411 at paragraph 44; Stec v United Kingdom (2006) 43 EHRR 47 at paragraph 51. [43] See: Purvis v State of New South Wales (Department of Education and Training) (2003) 2217 CLR 92 at paragraphs 11 - 12, per Gleeson CJ and paragraphs 222 - 224, per Gunmow, Hayne and Heydon JJ; M, supra, at paragraphs 46 - 50, per Tang VP following the majority decision in Purvis. [44] Although mainstream schools should and do also adapt the English Language Curriculum Guide to develop and formulate their own school-based English Language curriculums to suit their respective own students’ capabilities and needs, there is no evidence of any of these adapted mainstream school-based English Language curriculums before the court. Hence, for the present purposes, the Secretary is contented to refer to the English Language Curriculum Guide as the mainstream English Language Curriculum Guide. [45] See Carson, supra, at paragraph 3, per Lord Nicholls, and paragraph 44, per Lord Rodger. [46] See for example, L, supra, at paragraph 61, per HH Judge Muttrie. [47] It is not the Secretary’s evidence or case that NETs would not further benefit ID students’ learning of English Language. Moreover, it must at least impliedly be the Secretary’s own position that ID students could benefit from having NETs for their learning of English Language, as it is the Secretary’s own position that, in the absence of a full time NET, he is prepared to provide peripatetic support (which is provided through the service of ATs, who are themselves NETs) to ID Schools to aid the teaching of English Language. See also Lee Cheuk Hong’s 1st affirmation at paragraphs 27 - 29. [48] Further, as I mentioned above, at paragraph 1.5.1 of this Supplement Guide, it is emphasised that it should be used as a supplement to the English Language Curriculum Guide and should be read in conjunction with that Guide. [49] See Dr Wong Kai Hung’s affidavit at paragraphs 78 - 88. [50] See Dr Wong Kai Hung’s affidavit at paragraph 81. [51] See generally: Cheung Wai Mun Rosana’s 2nd affirmation at paragraphs 53 - 62; Wong Yuen May Alice’s affirmation at paragraph 3; Chan Tsui Wah’s 3rd affirmationat paragraphs 40 - 44. [52] See: LC Paper No CB(2)901/01-02(03) (exhibit “CWMR-15”) an the EDB Circular No 8/2002 dated 14 March 2002 (exhibit “CWMR-13”). [53] See Cheung Wai Mun Rosana’s 1st affirmationat paragraph 12. [54] See also Lee Cheuk Hong’s 1st affirmation at paragraph 28; Lee Cheuk Hong’s 2nd affirmation at paragraph 10; Ho How Sim’s 3rd affidavit at paragraphs 24 and 28; Ho How Sim’s 4thaffidavit at paragraphs 17 and 71; and Wong Hau Sau’s 1st affirmation at paragraph 15. [55] See Cheung Wai Mun Rosana’s 2nd affirmation at paragraph 41. [56] For example, there is evidence that authentic English culture under the current arrangement can only be provided by a full-time NET: Keith Adrian Humphreys’ 1st affirmation at paragraphs 31 - 34; Lee Cheuk Hong’s 1st affirmation at paragraph 28. [57] See Cheung Wai Mun Rosana’s 2nd affirmation at paragraphs 46 and 53. [58] International Covenant on Civil and Political Rights. [59] See the applicant’s skeleton at paragraphs 220 - 223 and the evidence referred therein. [60] See Chan Tsui Wah’s 2nd affirmation at paragraph 6. [61] Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation [2009] 5 HKLRD 620 at paragraphs 31 - 35, per A Cheung J (as the learned CJHC then was). [62] The SEED Projects are a range of Collaborative Research and Development Projects initiated by the EDB each year as a form of professional support to facilitate schools and teachers in developing and trying out different curriculum components and practices to support the improvement of learning and teaching in schools, including ID Schools. The 2011/12 SEED Project was to explore possible modes of English learning activities for ID students and to collect information on good practices to facilitate inter-school sharing. See Dr Wong Kai Hung’s affidavit at paragraph 92 - 97. [63] See: R (on the application of Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538 at paragraphs 34 - 36, adopted by this court in MST v The Duty Lawyer Service (unreported, HCAL 6, 7 and 63/2013, 16 August 2013, per Au J) at paragraph 18; MA v Director of Immigration (unreported, HCAL 10/2010, 6 January 2011) at paragraphs 86, 99 and 102, perA Cheung J (as the learned CJHC then was). [64] In this letter, in explaining to the School the Policy reason in rejecting the School’s application, it is stated relevantly that: “... I wish to inform you that under the existing policy, the NET Scheme in Primary Schools does not cover special schools for children with intellectual disability in view of their special curriculum, different educational needs, and not being included as schools offering English Language as part of the Basic Education curriculum framework.” [65] Again in this Chinese letter in reply to the School’s Management Committee query on the Policy, explained the underlying considerations of the Policy again as stated in the 26 July 2011 letter and the Rejection Letter. [66] As pointed out at paragraphs 179.1 - 179.2 and 180 of Ms Wong’s skeleton, Mr Dykes has sought to raise two more specific complaints at paragraphs 239 - 243, 245(a), 250(a)(i), (ii) and (b) of his skeleton under this Fettering of Discretion Ground. These grounds have not been pleaded in the Amended Form 86. This court would therefore not consider them. [67] See paragraph 74 of the Amended Form 86. [68] The international conventions relied on by the applicant are Article 26 of the ICCPR (which has been domesticated into Article 22 of the BOR) and Articles 4, 5 and 24 of the United Nations convention on the Rights of Persons with Disabilities (of which the People’s Republic of China is signatory and had expressly stated that it be applicable to Hong Kong). The applicant in his submissions also relies on Articles 25 and 39 of the BL. See paragraphs 255 - 257 of his skeleton. [69] It is trite that there are three different categories of consideration: (i) those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had; (ii) those clearly identified by the relevant legislation as considerations to which regard must not be had; and (iii) those to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so: see Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, at 439, per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037. In relation to the third category of consideration, what is and what is not a relevant consideration for a public decision-maker to have in mind is, absent a statutory code of compulsory considerations, for the decision-maker, not the court, to decide subject only to the Wednesbury unreasonableness challenge: R (AL Rawl) v Foreign Secretary [2008] QB 289, at paragraph 131, per Laws JA. [70] See generally Lee Cheuk Hong’s 1st affirmation. [71] See the applicant’s skeleton at paragraphs 214 - 216. [72] See for example, Ho How Sim’s 3rd affidavit at paragraph 22, and Lee Cheuk Hong’s 1staffirmation. |
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