Loh Ming Yin v. Hong Kong Examinations and Assessment Authority
Read the full judgment text of HCAL 1087/2020 on BabelCite. This High Court CFI judgment was delivered on 3 July 2020.
1. Public examinations are set to permit differentiation between students after evaluation of their examination performance. Such examinations typically have a range of passing and failing grades. The better students – that is, those students who provide more answers which are correct and/or who provide the better answers – will achieve the higher grades. There will be other students – that is, students who provide fewer answers which are correct and/or whose answers are not as good – who wil
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HCAL 1087/2020 [2020] HKCFI 1135 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1087 OF 2020 ________________________
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____________________ J U D G M E N T ____________________ A. Introduction 1.Public examinations are set to permit differentiation between students after evaluation of their examination performance. Such examinations typically have a range of passing and failing grades. The better students – that is, those students who provide more answers which are correct and/or who provide the better answers – will achieve the higher grades. There will be other students – that is, students who provide fewer answers which are correct and/or whose answers are not as good – who will achieve only lower grades, or who might fail the examination altogether. 2.Ordinarily, when a student attempts an examination question and produces a wrong answer or a poor answer, the person who marks the examination will give that student a fail or a low mark on that question. That is a natural and wholly expected consequence of the examination process. On the other hand, it would not be expected that the body setting the examination would, after doing so, then invalidate one of the questions simply on the basis that there was a risk that some students might have indeed produced a wrong answer. 3.In this case, after the relevant examination was set, and after the students sat the examination, but before the marking took place, it seems to have been belatedly determined that some students might reach the “wrong” answer to one particular question, so the decision was taken to invalidate that question. 4.The Applicant is one of the students who sat the relevant examination, namely History Paper 1 (“HP1”) of the Hong Kong Diploma of Secondary Education (“HKDSE”) Examination. Amongst those questions which he answered was Question 2(c) (“Question”). 5.Subsequently, and in circumstances which require exploration, the Hong Kong Examinations and Assessment Authority (“HKEAA”) decided to invalidate the Question (“Decision”). Part of the Decision also involved altering the marking arrangements to seek to deal with the inevitable consequence of invalidating one question amongst all those answered by examination candidates. 6.By his Form 86 dated 3 June 2020, amended with my leave on the first day of the hearing, the Applicant seeks leave to apply for judicial review to quash the Decision. 7.I directed that there should be an expedited ‘rolled-up’ hearing of the application for leave to apply for judicial review and the substantive application for judicial review. I also gave directions for the filing of evidence and written submissions with a tight timetable. I fixed the expedited ‘rolled-up’ hearing and the tight timetable in light of the urgency of the matter, where the HKEAA plans to release the HKDSE 2020 results on 22 July 2020. Those results will then set in train a number of JUPAS key dates leading to the announcement of JUPAS main round offer results on 13 August 2020. 8.I also gave an opportunity for the Education Bureau (“EDB”) to notify whether it wished to take any part in the proceedings as an interested party. It notified me that it did, and so was joined to the proceedings. 9.The evidence produced for this ‘rolled-up’ hearing comprises:
10.The ‘rolled-up’ hearing took place on 2 and 3 July 2020 – that is, yesterday and today. 11.Ms Wing Kay Po, Mr Jeffrey Tam and Mr Albert Wan appeared as Counsel for the Applicant. Mr Victor Dawes SC and Ms Sara Tong appeared as Counsel for the HKEAA. Mr Jenkin Suen SC and Mr Johnny Ma appeared as Counsel for the EDB. I have also had the benefit of written skeleton submissions provided, and which I have been able to consider, in advance of the hearing. 12.This is my Judgment. B. Standing and Amenability 13.It is helpful first to deal with two matters which are not really controversial, namely (a) the Applicant’s standing to bring this application and (b) the amenability of decisions of the HKEAA to applications for judicial review. 14.As a candidate of HP1, who sat the paper and answered the Question, the Applicant is directly affected by the invalidation of the Question. Therefore, on the first point, I have no hesitation in holding that the Applicant has sufficient interest in the matter to which the application relates, that is that the Applicant has proper standing. 15.As to the second point, there is apparently no Hong Kong precedent on the amenability of decisions by the HKEAA being subject to judicial review. However, assuming the focus is on the right elements of the decision-making process, I have no hesitation that such decisions are, or at least that the Decision in the current case is, amenable to review. 16.The relevant necessary element of public law or public function seems to me to be satisfied. The HKEAA is responsible for the setting of and administration of public examinations. Its existence and powers have statutory underpinning. The essential nature of the Decision the subject of the challenge is the exercise of a public function. 17.But I also accept the distinction drawn by Mr Dawes in his submissions between (a) a challenge to an academic judgment, which is non-justiciable, and (b) a challenge to the procedural fairness or rationality of a decision, which is reviewable: see Chan Yan Cheong v Research Grant Council of University Grants Committee [2020] 2 HKLRD 247 at §§17-20. As it was put by Au-Yeung J in that case, a University – but here, the HKEAA – “is equipped to consider issues of academic judgment in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate”. 18.At the commencement of her oral submissions, Ms Po also fairly accepted that distinction, and asserted that the challenge is not one to academic judgment, but precisely to the procedural fairness of the Decision. 19.In her reply submissions, however, she reminded me to treat with some caution incantations to ‘academic judgment’. She referred me to R (on the application of Darmeena Gopikrishna) v The Office of the Independent Adjudicator for Higher Education [2015] EWHC 207 Admin, where the relevant distinction was considered by HHJ Curran QC. In that case, at §188, it was pointed out that not all judgments which academics have to make qualify for either the statutory academic decision immunity (relevant to that case, but not this) or the area of non-justiciability accepted by the courts. Nor can any academic institution expect that any claim for academic judgment immunity or non-justiciability will be accepted uncritically. The nature and extent of the judgment determines the point. In scrutiny of the relevant decision, the court should consider whether the decision is of a purely academic nature – the examples given were a dispute over a mark, or the class of degree awarded – or whether the academic extent of the decision is only one element of it. An example of the latter category is where the complaint relates to a procedural unfairness in reaching the decision, or to an allegation that extraneous or irrelevant matters were taken into account by the decision-maker. 20.The judge thought his own formulation was not significantly different from the formulation adopted by the OIA (the body whose decision was under review in the case before him), which was as follows:
21.That seems to me to repeat or reinforce the distinction drawn in Hong Kong in the Chan Yan Cheong case, as well as the rationale underpinning it as identified by Au-Yeung J. C. The Basis of the Challenge 22.By way of introduction to them, it may be helpful to set out the broad grounds of review put forward by the Applicant in the challenge to the Decision. As always on such an application, the Court is mainly concerned with looking not at the merits of the decision itself, but at the integrity of the decision-making process. 23.The Applicant’s grounds as set out in the Amended Form 86 are that:
24.However, although the focus is on the decision-making process, I note that a considerable part of the EDB’s evidence and written submissions specifically asserts that the Decision was the right decision in that the Question was defective and so should be invalidated. I note Mr Suen’s later oral submission that the court is not concerned with the propriety of the EDB’s views, not least where the EDB has not made any decision the subject of challenge by review. But, in the overall circumstances, and without trespassing too much on matters of academic judgment, I do not think it is inappropriate for me to make some comments on the EDB’s arguments, which on occasions I might respectfully describe as being ungrounded or unfair, and prone to what I see as some logical fallacy. 25.That said, I also acknowledge that Mr Suen made clearer in his oral submissions (and the further speaking notes he provided) that the purpose for the EDB to deal in such detail with its own views was to demonstrate that they were professional views, not political views. Mr Suen seeks to emphasise that the views which the EDB espoused in its dealings with the HKEAA where the result of professional evaluation and the consideration of professional advice, taken both internally and externally. 26.Unfortunately, the way in which the EDB and senior Government officials have made various public announcements has, to put it mildly, not helped in maintaining the perception of any clear distinction between professional and political statements. D. The Question 27.History is one of the elective subjects in the HKDSE. The HKDSE History examination has two papers HP1 and History Paper 2, divided as follows:
28.The Question – question 2(c) – is part of a wider question 2. As with the other questions 1, 3 and 4, question 2 is a compulsory question in the HP1. Each of the four questions relates to a particular topic or period, sets out some source material, and is broken into three sub-questions (a), (b) and (c), for a total of a possible 15 marks. Within each complete question, questions (a) and (b) together have a maximum of 7 marks (4 marks and 3 marks or 3 marks and 4 marks, respectively). Within each complete question, question (c) has a maximum of 8 marks. In each case, question (c) puts forward a proposition and asks the candidate whether he or she agrees, and to explain his or her answer with reference to the source material and using his or her own knowledge. 29.The whole question 2 is headed ‘China and Japan in the first half of the 20th century’. 30.In the English version, question 2 begins with two source passages set out as follows:
31.Beneath Sources C and D – both clearly expressed to be either an adaption and/or extracts – are the actual questions. For context, it may help to see that questions 2(a) and 2(b) were as follows (emphasis in original):
32.The Question – ie. Question 2(c) – was as follows:
33.The Chinese version of the Question has the same content, including the Sources. The Question in the Chinese version reads:
34.Though “利” and “弊” are treated as meaning “good” and “harm” in the English version, a translation of those terms might be “advantages” and “disadvantages”. But I do not think that there would be any material difference for current considerations, and I shall continue to use the words “good” and “harm”. 35.Candidates can choose to take the examination in either language. The Applicant himself sat the examination in English. 36.The nature and style of the Question will be familiar to almost anyone who has sat an examination in a humanities subject. There are some extracts of materials, but the candidate is expressly told not just to refer to them but also to use his or her own knowledge. It is obvious, but is also clear from a ‘Manual of Question Words Used in History’ that “with reference to the source” asks for information from the specified source(s) only, and “using your own knowledge” asks for information from outside the source(s). The Question poses a proposition, and asks whether the candidate agrees with it. The view expressed by the candidate should be explained with reference both to the extracts provided as sources as well as to the candidate’s own knowledge. The proposition itself – “more good than harm” – identifies a likely or potential balancing exercise. 37.The Question is, as already noted, said to be worth 8 marks. Obviously, it does not invite a simple ‘yes’ or ‘no’ answer. Most of the marks available must relate to the explanation or arguments used to support the agreement or disagreement offered, including what is taken from the Sources and the other relevant knowledge demonstrated. I also agree with Ms Po that inherent in the question is the ability for the candidate partially to agree or disagree, that is to identify the extent to which the candidate agrees with the proposition or the elements of it, and why. That is inherent also in the “more A than B” formulation. Reference merely to the Sources provided will clearly not suffice to score high marks. High marks will only likely be awarded to a candidate who also demonstrates relevant other knowledge, and the ability to deploy it in support of the explanation or argument put forward. This is all obvious from the form of the Question, but it is also clear from the draft marking scheme (see below). 38.In my view, such a form of question does not give rise to any one “right” or “wrong” answer. The form of question does not seek to permit identification between candidates who are “right” and those who are “wrong”. Rather, the question seeks to permit differentiation between better candidates and less good, perhaps even poor, candidates. Indeed, that must be the purpose of the examination as a whole. 39.The marks to be granted are clearly not a choice between either ‘zero marks’ or ‘8 marks’. There is plenty of room for a candidate to be awarded marks somewhere between those two extremes. It might be thought that is precisely the function of this type question, to be able to differentiate between the range of abilities of various candidates. For example, one candidate might demonstrate extensive relevant other knowledge but a poor ability to marshal that material into a cogent argument or explanation of his or her offered agreement or disagreement with the proposition. Another might demonstrate limited relevant other knowledge but a good ability to produce a cogent argument or explanation of his or her offered agreement or disagreement with the proposition. Better candidates will deploy their own knowledge and references from the sources. 40.It might also be thought that the form of the Question seeks to promote an ability or skill now often sadly lacking in wider society. This lack is not just a Hong Kong phenomenon, though it has been rather evident in Hong Kong in recent times. In their rush to extremities of view, many people seem to have lost the ability (or perhaps the willingness) to see or even contemplate any middle ground, or to understand any nuance. All too often, people simply exist in their own ‘echo chambers’, which simply reinforce and only strengthen existing views. A preference for pithy slogans often simply masks the complexities of many issues. Trenchant shouting and stunts have replaced informed debate. Tolerance of the views of others, let alone a willingness to seek to understand and engage with them, or to seek more common ground, is on the wane. Civilised society is the poorer for it. 41.But the Question is of a sort which gives some hope. It requires critical thinking. It poses a proposition and asks whether – and, implicitly, to what extent – the candidate agrees with it. But the mere assertion of a view is not enough for a candidate to do well. That view must be explained or reasoned, and it is obvious that the candidate is being asked to provide a properly argued explanation by reference to objective facts from his or her own relevant knowledge and far beyond any facts apparently stated in the limited Sources provided. It requires looking at two sides to an argument, even if the view is taken that there is rather less which might be said on one side as opposed to the other. 42.One might think the very purpose of the Question and the Sources provided with it is to test a candidate’s ability to exercise his or her critical thinking functions, to weigh the apparent content of the Sources against the other facts known to the candidate, to balance those facts and to reach an overall reasoned conclusion. Depending on the facts deployed, the conclusion might be obvious, or it might be more finely-balanced. The factual period relevant to answering the Question is as long as 45 years, from the dawn of the 20th century to the end of the Second World War. The events over that period, to which a student might make reference, were obviously legion and varied. Some facts might be so well-known as to be notorious. 43.The best candidates will be able to demonstrate their critical thinking, the extent of their knowledge, their ability to point out any limitations in the Sources and to balance facts one against another, and will likely reach the overall conclusion that most ordinary right-thinking people would think to be “correct”. The poorer candidates will not be able to demonstrate those things, and accordingly will be – and should be – marked down. 44.That way, the Question will have served its obvious intended purpose. Indeed, it might be thought insulting to the better candidates for it to be suggested they might in some way be “misled” by the Question. It might also be thought overly paternalistic or patronising to the poorer candidates to think that they should not be marked down if they fail to exercise and demonstrate the very abilities and knowledge which the Question seeks to test. E. The Events Leading to the Decision 45.Because of the public health crisis caused by the Covid-19 outbreak, there was considerable uncertainty as to whether or not the HKDSE Examinations would be able to go ahead. That uncertainty must have caused real anxiety to a number of the candidates. However, it was ultimately decided to proceed with the examinations, though some were delayed. 46.Ms Po relies on the chronology mainly as follows. It comes from materials which were mostly at all times public. 47.Those candidates who sat for HP1 did so on the morning of 14 May 2020, from 8:30 am to 10:30 am. 4,958 candidates actually sat for the examination, of which 2,991 took the examination in Chinese and 1,967 took the examination in English. Out of the total number, 4,721 were “school candidates”, that is candidates who are usually Secondary 6 students of registered schools in Hong Kong. The remaining 237 were “private candidates”, who might be persons who want to re-sit for a certain subject, or who are currently pursuing a non-HKDSE curriculum equivalent to Secondary 6. 48.Very shortly after the candidates sat the HP1, media and other public comments on the Question began. Those comments suggested that the Question was “biased” in that it played down the impact and horrors of the Japanese occupation of China, and the effect of the war between the two countries in the period from 1937 to 1945. The Office of the Commissioner of the Foreign Ministry in Hong Kong also made a Facebook post, citing an earlier criticism from the Hong Kong Federation of Education Workers which made those points. 49.In response, the HKEAA issued a press release dated 14 May 2020 entitled ‘Response to Comments on the HKDSE History Examination Question Concerned (Chinese version only)’. The content of the press release stated:
50.Translated into English, the press release stated:
51.That press release, therefore, identified the purpose of the Question and what abilities were being tested, primarily the ability to present logical and coherent arguments through proper selection and organisation of historical data. As I have indicated above, that much is actually evident from the form of the Question itself, but the statement makes clear this was actually part of the curriculum objectives. The press release also explained that candidates were required to answer the Question with reference to the source materials and the historical happenings during the relevant period. 52.The press release further identified that (1) the data provided in the Question was part of the means of the assessment; (2) the Question had been set by a Moderation Committee which ensured examination papers are consistent with the curriculum aims and assessment objectives, and to ensure the Question was workable; (3) the Moderation Committee had set the Question to ensure that candidates are assessed in an effective and fair manner; and (4) examination markers would have reasonable room for the exercise of their own professional judgment. 53.By its press statement, it seems to me that the HKEAA was standing by the Question, and seeking to explain why any criticism of it was unfounded or ill-informed. 54.However, in his affidavit filed for these proceedings, the Secretary-General of the HKEAA, Dr So, says that it should be noted that at the time of the press release, the HKEAA Council had not yet had a chance to consider or discuss the Question, though the HKEAA Secretariat circulated the issued press release to Council members for their reference. That may be so, but the statement issued in the name of the HKEAA must have been approved and signed off by someone with the authority to do so, and was presumably what the HKEAA honestly believed. 55.The EDB was quick to jump into the fray. At 11:31 pm on the same day, 14 May 2020, a press statement was issued by a spokesman for the EDB which stated (emphasis added, shown by italics):
56.The speed of the EDB’s entering the fray, and what was said, do not suggest the making of any fully considered response. The reference to hurt feelings and dignity of the Chinese people does not seem to be a matter of examination curriculum and assessment (where, incidentally, the vast majority of those who set and sat the examination are themselves Chinese people). The nature of the comments made also suggest that the EDB had either not read, or had paid no attention to, the press release from the HKEAA. For example, it demands an explanation, which has just been provided. There is no suggestion in the evidence that the EDB sought first to communicate with the HKEAA, before the EDB rushed to print its regret, condemnation, demands and requirements. Rather, the nature of the EDB’s comments seem an emotive reaction to previous emotive comments, and smack of knee-jerk political correctness and self-censorship of an unattractive kind. 57.On the next day, the HKEAA issued two press statements, in direct response to the comments made by the EDB and the Secretary respectively. Again, Dr So asks for it to be noted that the time of the two press statements, the HKEAA Council still had not yet had a chance to consider or discuss the Question, though the press statements were circulated to Council members for their reference. But, as before, the statements issued in the name of the HKEAA must have been approved and signed off by someone with the authority to do so. 58.One statement was entitled ‘Response on the HKDSE History Examination Questions by the HKEAA’. It was actually issued at around 3 am on 15 May 2020, namely after the EDB press release a few hours earlier, but before the press conference. There is some force in Ms Po’s suggestion that the timing of the statement indicates the “palpable anxiety” (as she put it) resulting from the pressure placed upon the HKEAA by the EDB. The statement provided as follows:
59.It can be noted that the web reference provided was to the same booklet already referenced in the HKEAA’s press release of 14 May 2020. I will look at some of the detail of it below. In the press release, there is no suggestion that the question should not or could not be marked. Rather, it was suggested that comments should await marking so as not to undermine fairness and or jeopardize candidates’ interests. There is no suggestion of invalidation. 60.Later that day, 15 May 2020, Mr Kevin Yeung, the Secretary for Education (“Secretary”) held a press conference. His opening remarks were in Chinese, and not repeated in English. They were:
61.In translation, those remarks were:
62.Those remarks seem to suggest, among other things, that the students taking HP1 would not know or would not be able to deploy the “common knowledge that Japan had invaded China in the past and the war against Japan had caused the deaths of tens of millions of Chinese people”. But the form of the Question in fact specifically required students to use their own knowledge (which ought to be better historical knowledge than just “common knowledge”). Also, it is evident from the form of the Question that students were in fact not “required to cite from the source in giving opinions to ‘more benefits than harm’” in any sense of necessarily supporting that view; what students were supposed to do was to make reference to the sources with whatever comment on them they thought apt, and to deploy their own knowledge in explaining the answer as to whether or not they agreed, or the extent with which they agreed, with the proposition that ‘Japan did more good than harm to China in the period 1900-45’. 63.Indeed, the task faced by students would have been the same if the proposition had been put the other way round, namely that ‘Japan did more harm than good to China in the period 1900-45’ (though it may be that such a formulation would not have provoked quite such a “public outcry”, to use Ms Po’s phrase as to what followed the examination). 64.In English, the Secretary made the following comments:
65.It is noteworthy that the Secretary moves from the EDB’s earlier “demand” for “follow-up” to specify the precise “follow-up” which is thought to be necessary, namely the invalidation of the Question. Ms Po asks me to take specific note – which I do – of the fact that possible invalidation of the Question is first raised by the EDB/Secretary, not the HKEAA, and in a public forum, not in the HKEAA Council (whose discussions are generally held in private and are confidential). 66.In response to media questions at the press conference, it has been reported, the Secretary also stated:
67.With respect, the irony in many of these comments seems to have been lost on the Secretary. For example, the statement that “there is no room for discussion” is completely at odds with the whole purpose of the Question, which is precisely to provoke or elicit a discussion and to test the candidates’ ability to deploy objective facts and argument in support of and/or against the particular proposition. The Secretary’s apparent refusal or inability to brook even discussion of any contrary or even a more nuanced view or the balancing of views is, at best, disappointing. 68.It is also inconsistent to suggest there is only one answer, and at the same time to suggest that the materials in the Sources identify reasons which might point to a different answer. What the Secretary seems to be saying is that there is only one acceptable answer. 69.Similarly, I think the criticism of the Question that it “deviated from objective facts” is misplaced, as the question did not purport to state any objective facts; it simply identified a proposition and asked whether the student agreed and why or why not. As the curriculum and assessment requirements show (see below), it was for the student to apply objectivity to the Sources. Further, the criticism that the Question “could not reflect students’ knowledge” overlooks the obvious fact that it is not the purpose of any question to reflect the students’ knowledge; that is the purpose of the students’ answer. Once a student has demonstrated the extent of his or her knowledge, and the other abilities tested by the Question, the student will be marked accordingly. 70.The Secretary’s comments also contain language consistent with a threat. Whilst on one hand supposedly recognising that question setting is an internal matter for the HKEAA, the Secretary nevertheless makes plain that the most effective solution to the perceived problem or controversy is to invalidate the Question. Whilst it is suggested that that solution is merely a “request”, that “request” is immediately reinforced by the statement that the problem with the question is obvious and that the EDB will decide what further action to take in the light of how the HKEAA responds to that “request”. The impression left is that there is also “no room for discussion” as to whether there was a problem, and if so what is the best way to deal with it. If that was not the intended impression, it was an unfortunate choice of words. 71.The second press release issued by the HKEAA on 15 May 2020 was entitled ‘Response to the Education Bureau’s Request on the HKDSE History Examination Question Concerned (Chinese version only)’. It stated:
72.In translation, it stated:
73.By a further press release dated 18 May 2020 entitled ‘HKEAA Council Discussed the HKDSE History Examination Question Concerned (Chinese version only)’ – on the day the EDB officers were to make their publicly announced visit to the HKEAA – the HKEAA stated that it agreed fully to cooperate with the EDB on its review of HKEAA’s existing question-setting mechanisms, but said further discussion was needed to review in detail how to handle the issue. I note that this press release seems still to be focusing on the process of setting questions, not any possible invalidation of the Question already set. 74.Also on 18 May 2020, an EDB spokeswoman pointed to the Hong Kong Examinations and Assessment Authority Ordinance Cap 261 (“Ordinance”), which states that the Chief Executive (“CE”) may give the supervisor direction in relation to matters that affect the public interest and which must be followed. 75.In light of that ‘trailer’, it is perhaps not surprising, therefore, that the very next day 19 May 2020, the CE herself made a statement. Mr Suen suggests that the CEO’s statement was made upon media queries, but such queries were hardly to be unexpected after – and the cynical might say they were intended to be provoked by – the comments from the EDB spokeswoman’s just the day before. The CE stated:
76.In light of that statement, it may be necessary to look at what powers the CE actually has under the Ordinance. But, I recognize that it is not suggested that the CE actually did purport to exercise any power given to the CE by the Ordinance. Instead, the CE stated that she had not “until this moment” (ie. not yet) told the HKEAA what it should do. But she did so almost in the same breath as stating as a fact that there had been a “professional error” and that she would step in if necessary. If what seems to be the clear message – without any need to read between the lines – was not intended, it was again an unfortunate choice of words. 77.In passing, it might be noted that on the same occasion the CE is also reported to have raised the following questions. It may be that they were posed ‘rhetorically’, but the problem with rhetorical questions is that sometimes people answer them, and not always with the answer the questioner had in mind. The questions posed were:
78.Anyway, it turned out that no further intervention was necessary. In a press release dated 22 May 2020, the HKEAA Council notified the Decision to invalidate the Question. In the press release, it was stated:
79.I will look later at the internal workings of the HKEAA in the period 14 to 22 May 2020. But this chronology of events identifies a direct line from (a) the HKEAA’s original stance, with the clear explanation of the purpose of the Question and the rigorous process by which it was set and checked, through (b) the strong intervention by various Government officials making clear demands for a different stance to be taken coupled with what many might think the at best thinly-veiled threats to step in, to (c) the volte-face by the HKEAA in making the Decision to invalidate the Question, using language which was redolent of, and which frequently echoed in terms, the wording of the various demands made of it. 80.Ms Po also seeks to rely on other contemporaneous matters during this period. First, she points to an opinion piece written by Choi Chee-cheong on 16 May 2020 and published in Citizen News. Mr Choi was the Secretary-General of the HKEAA (or its predecessor) from 1992 to 2004, and he urged the HKEAA to “think thrice” over any decision and to act for the benefit of examination candidates. He wrote:
81.In translation, that is:
82.Second, Ms Po points to the fact that on 21 May 2020, the Professional Teachers Union published the results of a survey conducted from 20 May 2020 to 21 May 2020, which indicated that 97% of the 268 teachers who responded to the survey, which amounted to 26.6% of all secondary school teachers teaching history, objected to any move to invalidate the Question. 83.Whilst the comments from a former Secretary-General and the views of secondary school history teachers are no doubt part of the context, subject to the discussion under Ground 3 below, I am not sure that they particularly impact the question now before the Court. 84.More relevant might be the fact that, after the Decision, on 25 May 2020 Dr So told a Legislative Council education panel meeting that 57% of the candidates who sat the HP1 paper said Japan did “more harm than good”, whilst 38% of candidates said Japan did “more good than harm”. Nearly 5% took no stance. He therefore said that the HKEAA Council believed that up to 38% of the candidates “might have been misled to reach a biased conclusion”. However, he emphasised that the Question had not been marked, because there had been only “initial screening”, and they would not be marked. He said, “The question was set inappropriately, so it would be difficult to formulate [an accurate] marking scheme. It would also be unfair to candidates as the question was misleading”. 85.Some might wonder how it can be determined that students had been or might have been “misled”. None of the questions had been marked. Therefore, apparently none of the reasoning for, or explanation of, or the lack of reasons for and explanation of, any particular answer given by any of the students had been considered. 86.It seems to be only because, as Dr So is reported as having said on the same occasion, the proportion of candidates who answered that Japan ‘did more good than harm’ to China was “unexpected” by those who helped draft the exam paper. He said:
87.Those comments at least show that it would be correct to think that candidates were indeed supposed to use their own knowledge, including about casualties caused by Japan, as part of the approach to answering the Question, and perhaps to balance (or over-balance) what might be read from the Sources C and D. More difficult to follow is the last comment. It seems to suggest that the question was intended to “lead” to one answer and/or lead to the use of the students’ other knowledge, but that it had not. This seems to suggest that the Question was always intended to be “leading”, but that it had led students to answer it the “wrong” way, not the “right” way. Yet, much of the basis of criticism of the Question has been exactly that it was a “leading” question – presumably meaning that it did not lead the “right” way. 88.It might also be thought that the failure is not with the Question, but with the answers, and so with the ability of a number of candidates to demonstrate the expected level of knowledge and the deployment of it in a discussion about the pros and cons of a particular proposition. I am not sure how a question which exposes the inability of some students to answer it very well somehow translates into it being a “biased” question. To my mind, it might be thought that is a question which does its job, to allow differentiation between better or “good” and poorer or “weak” students. 89.It can also be noted that since its inception in 1977 the HKEAA has never previously invalidated any conventional or data-based question in any public examination, whether in the HKDSE or any its predecessors. Whilst the HKEAA has previously invalidated a total of 15 multiple-choice questions since 2012, the HKEAA accepts that the considerations relating to such invalidation are very different from any approach to a conventional or data-based question, so those precedents provide no procedural assistance and, subject to the argument on Ground 1, can be ignored for present purposes. The underlying rationale for invalidation of multiple choice questions might nevertheless be relevant, where such questions were invalidated on the basis that they were low in discriminatory powers, outside the syllabus, did not allow candidates to reach the expected answer, or did not effectively assess candidates’ knowledge and understanding. 90.In light of the criticism as to the “sensitivity” of the Question and the supposed lack of room for discussion (see below), the Applicant has – in his reply evidence – made reference to an examination question in the International General Certificate of Secondary Education (“IGCSE”) in which question 10(c) of the IGCSE History Paper 0470/12 from May/June 2013 asked:
91.The Applicant says the atrocities of Nazi Germany during the Holocaust are well-documented and generally abhorred across civilian societies. Yet that did not prevent the IGCSE examination authority seeking to test students’ historical knowledge, and to assess their ability of critical analysis and discrimination by putting forward a controversial proposition. I agree that it would be irrational and insulting to students in the UK to suggest that they would be insensitive to the issues, even stark issues, involved. Ms Po says it would also be illogical to suggest that students in Israel would be blinded by emotion to afford the question any critical scrutiny. 92.In her oral submissions, Ms Po also referred to another IGCSE question, and the marking schemes for both questions. The further question was:
93.Ms Po said this was another question that might be regarded by many as covering a sensitive topic, but that the marking scheme for each question identified how the range of responses would be scored. The best candidates would be able to identify benefits and disadvantages, that is to deal with both sides of the explanation of the benefits or disadvantages. It might also be convenient at this point if I state that I do not see any fundamental difference between the formulation of these questions and the formulation of the Question. The IGCSE questions have a statement of a proposition with no comparables, and ask candidates to state how far they agree with that proposition, with an explanation. The Question has a proposition with built-in comparables, and asks candidates whether they agree, and to explain. 94.From his own point of view, the Applicant has identified in his reply evidence that he well understood the harm which Japan did to China during 1900 to 1945. He says he understands that the Japanese invasion caused political instability during the 1930s, and so not only caused loss in human life but also mass disruption of the Chinese economy, which was a serious harm to China. He also identified that the Japanese loan identified in Extract B of Source D would have caused financial burden; whilst the loan might have seemed to assist development, the annual interest of 7% and the provision of the mine as collateral would cause economic pressure and financial burden onto the (then) Republican Government. 95.Of course, it must be recognised that some candidates might not have performed well in the context of answering the Question. They might well have not had sufficient knowledge and ability to be able to deploy objective facts and arguments to reach the conclusion, which I accept most would think to be the “correct” conclusion, that overall – and irrespective of any possible good or benefits which Japan brought to China – Japan did more harm than good to China in the period 1900-1945. 96.But, I confess I also think it highly unlikely that a strong government like that in the Mainland, or a strong people like the Chinese, would realistically feel threatened by the potential that a few hundred students taking a secondary school examination in Hong Kong might, for the purposes of the examination, apparently demonstrate a nuanced approach to history, or even that they might express and argue for a view clearly and understandably not shared by the vast majority of Chinese people. Surely, most sensible people would think that those students who provide a poor answer would and should simply be given a low mark for the poor answer to that question. F. The Ordinance 97.As its preamble states, the Ordinance was “to provide for the establishment of the Hong Kong Examinations and Assessment Authority and connected matters”. 98.Section 3 of the Ordinance provides for the establishment of, and the membership of, the HKEAA (defined in the Ordinance itself as “the Authority”). The actual membership is provided for in Schedule 2 and the members shall comprise:
99.Section 3(11) also provides that, subject to the Ordinance, the HKEAA shall have power to regulate its own procedure. Pursuant to that provision, the HKEAA Council has produced the Rules of Procedure of the HKEAA Council (see below). 100.The powers and duties of the HKEAA are provided for in section 7. They include (as may be material to the current application):
101.Under the heading ‘Power of the Chief Executive to give directions’, section 13 provides (emphasis added, shown by use of italics):
102.Though I do not need to decide the point for present purposes, it might be thought that a direction to invalidate specifically just one sub-question of one examination paper of one examination subject out of all of the examination questions, papers and subjects is unlikely to fall within the permitted “directions of a general character”. 103.Section 14 provides that the HKEAA is not the servant or agent of the Government and does not enjoy any status, immunity or privilege of the Government. 104.Under the heading ‘Secrecy’, section 15 provides as follows:
105.By virtue of Schedule 1 to the Ordinance, the “specified examinations” to which the Ordinance applies are the HKDSE Examination. The HKDSE was administered for the first time in 2012 following the implementation of the New Academic Structure, where students are expected to complete three years of junior secondary education followed by three years of senior secondary education, at the end of which students can sit for the HKDSE. (The previous Hong Kong Certificate of Education Examination and Hong Kong Advanced Level Examination were replaced as “specified examinations” and discontinued from 2012 and 2014 respectively.) 106.The Rules of Procedure of the HKEAA Council (“ROP”) deal with matters such as language, meetings, committees, notice of meetings and agenda items, rules of debate, possible transaction of business by circulation, minutes, conflicts of interest, and secrecy. The latter provision requires any member of the HKEAA Council to preserve and aid in preserving secrecy with regard to all matters coming to his knowledge in the exercise or performance of any duty or function under the Ordinance. The ROP are ‘high-level’ rules, and do not deal with the approach to specific instances as might arise. G. The History Curriculum and Assessment Guide 107.HKDSE History examination questions must align with the History Curriculum and Assessment Guide (Secondary 4-6) (“C&A Guide”) and the Assessment Framework of HKDSE History Examination (“Assessment Framework”). 108.The C&A Guide identifies on its front page that it was jointly prepared by the Curriculum Development Council (“CDC”) and the HKEAA, and recommended for use in schools by the EDB. It was issued in 2007 (with updates in November 2015). The Assessment Framework is prepared by the HKEAA with reference to the C&A Guide. 109.The CDC is an advisory body that gives recommendations to the HKSAR Government on all matters relating to curriculum development for the school system from kindergarten to senior secondary level. Its membership includes heads of schools, practising teachers, parents, employers, academics from tertiary institutions, professionals from related fields/bodies, representatives from the HKEAA and the Vocational Training Council, as well as officers from the EDB. 110.Though it is of course impossible, and unnecessary, to set out within this Judgment the full text of the C&A Guide, I note that the preamble to the C&A Guide says that all chapters in it “should be read in a holistic manner”. Specific passages taken from the C&A Guide are approached by me on that basis, that is to read them in the overall context of the C&A Guide. 111.The following passages seem to me to have particular relevance for present purposes (emphasis added, shown by use of italics). 112.In Chapter 1 ‘Introduction’, it is stated that the chapter provides the background, rationale and aims of History as an elective subject in the three-year senior secondary curriculum, and highlights how it articulates with the junior secondary curriculum, post-secondary education, and future career pathways. 113.Section 1.1 ‘Background’ includes the following:
114.Section 1.2 ‘Rationale’ includes the following:
115.Section 1.3 ‘Curriculum aims’ includes the following:
116.Section 1.4 ‘Curriculum Objectives’ includes the following:
117.Section 1.5 ‘Broad Learning Outcomes’ includes the following:
118.Chapter 2 ‘Curriculum Framework’ identifies that the curriculum is designed in particular to focus on the major developments in the 20th century. Again, reference is made to striking a balance between the breadth and depth of studies to allow for students’ development of critical thinking skills and enquiry learning. One of the ‘themes’ of the curriculum contents is ‘Theme A: Modernisation and Transformation in Twentieth-Century Asia’. That theme expressly includes both ‘Modernisation and transformation of China’ and ‘Modernisation and transformation of Japan and Southeast Asia’. In the explanatory notes for that part, it identifies that students will analyse the ways in which the contemporary political, social, economic and cultural conditions in Japan in the early 20th century led to the rise of militarism, and will assess its consequences for Japan and Asia. 119.Chapter 4 ‘Learning and Teaching’ provides guidelines for effective learning and teaching of the History curriculum. Section 4.1 ‘Knowledge and Learning’ sets out the following:
120.Section 4.3 ‘Approaches and Strategies’ includes 4.3.1, where it is recognised that:
121.Section 4.3.2 on choosing appropriate strategies has a passage relating to “source-based learning and reading to learn”, which includes an exhortation for teachers to enable their students to acquire the techniques that can help them to read with understanding, locate and use information, and formulate arguments. As regards the use of historical sources, it is stated:
122.Chapter 5 ‘Assessment’ discusses the role of assessment and history learning and teaching History, the principles that should guide assessment of the subject and the need for both formative and summative assessment. It also provides guidance on internal assessment and details regarding the public assessment of History, as well as giving information on how standards are established and maintained. 123.Section 5.3 ‘Assessment objectives’ states the following:
124.Section 5.5 ‘Public assessment’ sets out the principles guiding public assessment, which include that the outcomes that are assessed and examined through the HKDSE should be aligned with the aims, objectives and intended learning outcomes of the senior secondary curriculum. Under 5.5.2 ‘Assessment design’, with effect from the 2018 Examination, HP1 is to consist of data-based questions. Candidates should answer all questions. It is also specifically noted that:
125.Under 5.5.3 ‘Public examinations’ it is noted that:
126.The Assessment Framework is a one-page document. As well as identifying the mode of public assessment by public examination comprising two papers (see the above table setting out the content, weighting and duration of each paper), the Assessment Framework provided as follows:
127.The overlap and consistency between the Assessment Framework and the C&A Guide on which it is based are evident. 128.The form of the Question may seem to many to fit squarely within the C&A Guide and the Assessment Framework. 129.But, ultimately, the HKEAA felt otherwise. H. HKDSE Quality Assurance Framework 130.As I have indicated above, two of the press releases issued by the HKEAA specifically referred readers interested in the details of the question setting mechanism and quality assurance to a document on the HKEAA’s website. That document is the HKDSE Quality Assurance Framework Booklet 2016 (“QAF”). 131.Section 1.1 ‘Introduction’ includes the statement that:
132.Section 1.2 ‘Overview of the Quality Assurance Framework for the HKDSE’ includes, under the heading ‘Development of examination papers’, the statement that:
133.Section 2.1.1 also contains a statement that rigorous quality assurance processes are put in place for the senior secondary subjects in terms of curriculum, pedagogy and assessment to ensure that their delivery is of high standards. 134.The first part of Section 3.1 ‘Development of Examination Papers’ is section 3.1.1 ‘Examination Paper Development Mechanism’, which includes the following:
135.That Appendix A includes passages relating to ‘Setting and Moderation of the Examination Paper’ and ‘Checking and Proofreading of the Examination Paper’, which include the following:
136.There is no suggestion that the HP1, including the Question, did not go through this process. Indeed, Dr So’s evidence emphasises that the Question did indeed go through this process, and that the Moderation Committee of the 2020 HKDSE History Examination consisted of one chief examiner, one setter, five moderators and one HKEAA history subject manager. I. Guidelines on Handling Sensitivity Issues 137.There is a further document which the HKEAA implemented in August 2018 called the ‘Guidelines on Handling Fairness and Sensitivity Issues in Examination Paper Development for the HKDSE’ (“HSI Guidelines”). 138.The HSI Guidelines are said to have enhanced the HKEAA’s former guidelines in relation to the handling of fairness and sensitivity issues in examination paper development which had been in place since 2015. The HSI Guidelines were drawn up following the recommendations of an overseas consultant group, which was commissioned by the HKEAA to conduct a review on the QAF during the 2017 HKDSE examination cycle. They incorporate overseas examination practices with adaptation to the Hong Kong context. 139.The HSI Guidelines are marked as being ‘Confidential’, but do not make express to whom the document is confidential. In so far as seems to me to be material for present purposes, the HSI Guidelines include the following provisions (emphasis added, shown by use of italics):
140.On the basis that the HSI Guidelines were implemented in August 2018, and that there has been no update to them, it is to be presumed that the HKEAA considers that they continue to reflect prevailing sentiments and practices. The thrust of the HSI Guidelines is, as the expressed purpose identifies, to ensure fairness to all examination candidates irrespective of their gender, race, religion, ethnicity, disability status or socio-economic status. In other words, it might be said to focus on the fairness to individual candidates. Nevertheless, that there is fairness to individual candidates seems to me itself a matter of fairness to all candidates, and that might also be seen as a matter of fairness to society as a whole. 141.The Applicant invites the Court to note that the HSI Guidelines were made by the HKEAA pursuant to the recommendation of the National Foundation for Educational Research of the United Kingdom. The Applicant points out that the HKEAA saw no issue in adopting that recommendation from a foreign education research entity, which may be difficult to reconcile with what the Applicant says is the irrational declining to look at foreign practice in setting controversial open-ended questions in a History examination. I do not think this point is a good one. Though internationally accepted standards might be broadly implemented, the particular application of them will depend on local circumstances, and the particular facts of any given situation. J. Marking Process 142.In his affidavit, Dr So identifies that the marking process of HKDSE answer scripts includes the following main stages: (a) appointment of markers; (b) developing a marking scheme; (c) sample scripts selection; (d) standardisation meeting; (e) markers’ meeting; (f) allocation of scripts to markers (with marking of written papers performed online using HKEAA’s on-screen marking system (“OSM”); (g) marking (which may include double-marking, or even further marking if there remain discrepancies between marks); (h) check marking; (i) addition of marks (a calculation performed automatically by the OSM); (j) forming the subject mark; and (k) grading. 143.As to (j) ‘forming the subject mark’, the marking statistics of each marker’s batch of scripts will be checked after completion of marking. Coupled with the data gathered during check marking, appropriate actions such as mark adjustment or re-marking will be taken to rectify any marking that is considered too lenient, too strict or erratic. That process will lead to the “adjusted mark”. 144.If a subject consists of two or more examination papers, such as History, the adjusted marks of individual examination papers will be converted to the same scale, taking into account the spread of marks in different papers and the published paper weightings, to form the “weighted paper marks”. This is a necessary step because the overall performance of candidates, in terms of the mean and spread of adjusted marks, may be different across the examination papers for a subject, so that the marks are not directly comparable with each other. The weighted paper marks for each examination paper will represent the final marks for each candidate, and will be added together forming the “subject mark”. It is the subject mark which goes through the grading procedure and standards-referenced reporting. 145.For the History papers including HP1, there was a specific ‘History Marking Scheme’, which on its face is stated to be “FOR MARKERS’ USE OF ONLY” (capitals in original). An abridged and redacted form of this document was produced by the HKEAA’s evidence. I am told that these documents are generally kept confidential until after the full marking process has been completed. The part produced (redacted) reads as follows (emphasis in original):
146.At my request during the hearing, I was provided with an un-redacted copy of the ‘History Marking Scheme’, so that I can see the context within which the marking scheme for Question is contained. It was provided to me by the 2nd affirmation of Dr So. In light of the confidentiality requirements, at least pending for completion of any marking process, I also ordered that affirmation to be kept in a sealed envelope on the court file, and not to be open for inspection without leave of the court. Further, though I have looked at the document, no part of it was referred to openly in court, and it is not to be treated as though I document read or refer to in open court. 147.By reference to the ‘History Marking Scheme’ for the Question, it might be noted that:
148.On the face of it, some might think this to be entirely in line with, and to fit, the intention of the C&A Guide, the Assessment Framework and the QAF. 149.But, ultimately, the HKEAA felt otherwise. K. HKEAA Council Deliberations 150.In his affidavit, Dr So sets out a history of matters relating to the HKEAA Council meetings on 18 and 21 May 2020 (“1st Council Meeting” and “2nd Council Meeting”, respectively). For each meeting, Dr So has also exhibited the background papers tabled and the minutes taken. 151.Tabled at the 1st Council Meeting was a background information paper, provided to facilitate members’ discussion. I note that the first paragraph of the background information provided includes the comment that, shortly after the HP1 was conducted:
152.But it might be noted that there is no suggestion in the evidence that anyone at the HKEAA actually considered that the setting of the Question had anything to do with anyone’s personal political stance. Bearing in mind the detailed process for setting examination questions, with many people involved, I shall assume that is obviously correct. 153.The background information then set out the chronology of events being: (a) the EDB press statement on 14 May 2020 demanding the HKEAA “to seriously follow up the matter and provide reasonable explanations to the public”; (b) the HKEAA’s press release on 15 May 2020 which “reassured that the consideration in question design fell on the relevancy of materials to the subject and no other irrelevant factors were considered”; followed by (c) the Secretary’s press conference on 15 May 2020 announcing what follow-up actions would be taken. 154.The background information then set out the ‘existing mechanism of question setting and quality assurance’, before a section relating to ‘deletion of examination papers or questions’. That latter section recognized the rarity and potential impact and unfairness of deleting any question, and included the following (emphasis added, shown by use of italics):
155.The last section of the background information relates to ‘post-mortem review’, and the use of feedback with the view to ensuring the quality of examination papers and for continuous improvement. Attached was a survey identifying that the examination papers were well received by schools and the subject committee for the subject History between 2016 and 2019. 156.The Minutes of the 1st Council Meeting identify that the meeting lasted from 2:30pm to 7pm. The Council first agreed to cooperate with EDB on EDB’s request to investigate the question setting, vetting and approval mechanism (subject to certain confidentiality measures). Then, after an explanation on the existing mechanism for paper setting and quality assurance, an explanation of the assessment objectives of the History subject and the mode of assessment, and an explanation of the marking principle and marking scheme, Council members exchanged views on the Question and the “draft” marking scheme. (It is not actually marked “draft”, and HP1 had already been sat and marking was about to begin, but Dr So says that marking is or can be an evolving process). 157.There were varying views expressed by Council members about the Question and surrounding matters. The representative of the Permanent Secretary for Education (“PS(Ed)”) (Mrs Hong Chan Tsui-wah, the deponent for the EDB in these proceedings) and the CDC Chair representative (Dr Chan Pik-wa, Gloria) were noted to have made lengthy arguments in support of the suggestion that the Question “should be invalidated, not be marked and permanently removed from the question bank”, as follows:
158.With respect, I consider some of these arguments to show leaky logic. It may be – indeed, I think it is – correct that the atrocities in the Sino-Japanese War were clearly harmful to China, and there is not much room for discussion on those atrocities (hence the very use of the word “atrocities”). But the Question clearly was not asking for discussion as to whether the atrocities were or were not harmful. Further, the Question specifically permitted or required, and was set with the intention that, candidates bring facts such as the atrocities into balance against any other knowledge deployed and the apparent content of the Sources C and D, which of course were themselves open to critique, analysis and commentary. The criticism that there should be “balanced arguments” appears to misunderstand the point of balancing arguments, and is also predicated on the assumption that the Question was misleading and biased. That seems to me to be circular reasoning. 159.I note that the General Manager - Assessment Development (“GM-AD”) explained to the meeting that:
160.The reference to the sources provided being “supposedly partial” identifies that the sources themselves may not actually be one-sided (as in this case they were not). The GM-AD (Project) added that the questions aimed to test candidates’ ability to apply their knowledge and understanding which are higher-order skills expected of candidates – a reference to the C&A Guide. 161.Be that as it may, there can be no doubt that some other Council members or participants in the discussion also expressed some concerns about the Question and/or that type of question. Some of the concerns echoed those expressed by the EDB. 162.On the point as to whether the Question should be marked, Dr So says that the Secretariat suggested marking the answer scripts first, in order to make a statistical analysis after marking, and that the Chairman also suggested marking the answer scripts for the benefit of the candidates. The Secretariat had, in advance of the 1st Council Meeting, carried out “a preliminary screening for about half of the answer scripts on 16 and 17 May 2020”. It was that preliminary screening which apparently revealed about 35% of the answers “appeared to be” that ‘Japan did more good than harm to China’. 163.I note first the original view was to mark the scripts so as to enable a proper statistical analysis. That is consistent with the point made in the background paper that deleting an examination question should not occur without sufficient justification and statistical evidence. But, the “preliminary screening” must have been rather cursory if it related to looking at around 2,500 scripts over two days. The reliability of anything that might be drawn from such screening is highly doubtful. Other than an increase in the number of papers the subject of preliminary survey, there is no evidence of any other deeper statistical analysis having been performed since. 164.Nevertheless, after discussing various other matters, and a thorough deliberation of the multi-faceted viewpoints, Council members formed an “initial view” that the Question was conceivably misleading and not well-designed, and it was considered appropriate to invalidate the question concerned. Some members expressed their views that further information, being views from subject experts and clarifications from subject experts of the History MC “were required to facilitate members’ final decision making at the next meeting”. The minutes record that the Secretariat was also requested to seek views and clarifications from subject experts and the History MC, to propose a mark adjustment mechanism, and to prepare a “comprehensive line-to-take for members’ deliberation and decision in the next meeting”. 165.In light of what occurred at the start of the 2nd Council Meeting, it may be important to note that my reading of the minutes of the 1st Council Meeting is that whilst “initial views” were expressed, no “final decision” was made to invalidate the Question, but rather further information was to be obtained to permit “members’ deliberation and decision in the next meeting”. 166.Between the 1st Council Meeting and the 2nd Council Meeting, the Secretariat of the HKEAA circulated to all Council members news reports from differing sources, capturing different views on the controversy over the Question. In any event, I do not think it is realistic to think that the Council members would not have been aware of the controversy over the Question, and the different views publicly expressed from numerous sources. 167.In the document tabled for the 2nd Council Meeting, a brief regurgitation was given of the views expressed by members at the previous meeting, and that after deliberation the members were of the initial view that the Question was not well-designed and might be misleading. It was also noted that invalidation of the Question as per EDB’s request might be viewed as a reaction to political pressure, so members requested the HKEAA to seek views from independent experts for members’ consideration. 168.The Secretariat had sought expert advice from a member of the History MC, a member of the History Subject Committee of the HKEAA and member of the History CDC-HKEAA Committee. The document tabled identified their views as follows:
169.From the above, it seems the member of the History MC and member of the History CDC-HKEAA Committee, were broadly supportive of the Question. Only the member of the History Subject Committee of the HKEAA felt otherwise amongst the three, but (for what it is worth) I do not find some of the reasoning very persuasive. For example, saying that “Japan did more good than harm to China in the period 1900-45” is an offensive, unethical, and unprofessional statement may be correct. But the Question clearly did not make that “statement”; rather, it posed it as a proposition to be discussed as against the events of the period 1900-1945. Further, assuming it is correct that “No country would get benefit from being invaded” (though it is not difficult to think of examples where an invasion was intended to promote good over evil), that would only identify that good students would not be ‘thrown’ by the Question. 170.The 2nd Council Meeting started at 8:30 am and ended at 4 pm. Clearly, the deliberations were detailed and lengthy. 16 Council members attended, together with various staff of the HKEAA, including the Director - Public Examinations (“D-PE”) and the Director - Examinations, assessment and research (“D-EAR”). Despite the presence of the PS(Ed), she proposed that her alternate, Mrs Hong, should also attend the meeting. 171.With the Chairman’s permission, Mrs Hong was the first to speak. It is fair to say the minutes identify that she attempted a very strong “steer” that the Council had already decided that the Question should be invalidated, and that unless the MC offered something that warranted a revisit of the matter, the meeting was not intended to re-open deliberation on whether the Question should be invalidated by considering other expert views. As she is recorded as having put it (emphasis added, shown by use of italics):
172.As shown by the minutes of the 1st Council Meeting, that strong push from the EDB representative was simply not correct. Indeed, some might think it inappropriate to try to come up with more clear and systematic support for a decision only after the decision has already been made. I also think it would have been necessary to consider proposals on how to deal with the 8 marks allotted to the Question as part of the overall discussion as to whether or not the Question should be invalidated. If, for example, no fair or appropriate way of allocating the marks could be devised, that might point strongly against invalidation. 173.But the Chairman, the Secretary-General and other members were not “steered” away from the real purpose of the meeting. That was a demonstration that they were not simply going to do what the EDB apparently wanted. Their (correct) view was that only an initial view had been formed by members at the previous meeting, and the current meeting was to look at other expert views to reach an “informed view” and a final decision. 174.Dr So also repeated his view that it would be fairer and more appropriate if the invalidation of the Question was to be considered after marking. In response, the PS(Ed) commented that EDB’s understanding of “invalidating” was that the question would not be marked and would be removed from the question database. She suggested that the meeting should consider objectively whether there would be any benefit in marking the Question. To my mind, the PS(Ed) missed the point being made by Dr So, which was that the benefit in marking the Question was that it might be fairer and more appropriate to the consideration of whether the Question should or should not be invalidated. Without that marking and the statistical analysis which might flow from it, Dr So was at that point saying there could not be any “objective” consideration. 175.The D-PE then explained to the Council the key observations of the opinions of the three experts, summarising the passages set out in the tabled document (see above). The Secretariat reported that on a preliminary survey of the answer scripts, potentially one-sided answers were spotted: 38% of the candidates answered ‘Japan did more good than harm to China’, seemingly relying heavily on the Sources; 57.2% of the candidates answered ‘Japan did more harm than good to China’, while 4.9% of the candidates took no stance or did not attempt to answer the Question. I also note that it was stated that 17% of candidates only mentioned “good”. It was also specifically recorded that Dr So stated that complete statistical data (e.g. how many/what “harms” and “goods” did a candidate state) would be available if the Question concerned was marked. 176.Those numbers apparently contradicted the prediction of the subject expert of the History MC, and the Secretariat agreed that the design of the Question was problematic and the Sources seemed misleading. In his evidence, Dr So identifies that the preliminary survey in question by then involved a preliminary screening of 4,829 answer scripts to the Question (out of the total 4,958). 177.Deliberations on the subject expert advice continued amongst Council members. They have been summarised by Dr So as follows:
178.A revised draft marking scheme produced by the Secretariat was discussed at the 2nd Council Meeting. That draft provided as follows:
179.At the meeting, Dr So explained that marking schemes are evolving documents, and that according to the revised draft marking scheme, no marks would be given if the candidates only copied information from the Sources without explanation. Since the so-called ‘good’ might not be an absolute ‘good’, the candidates would be given marks if they use their own knowledge to make reference to the Sources in identifying ‘harm’ that might be embedded in the financial assistance given to China or offering accelerated courses to Chinese students. 180.In the discussion, Mrs Hong thought that the Question was designed with “professional error” (incidentally, exactly the phrase used by the CE) and it was impossible to devise a fair and appropriate marking scheme. Therefore, invalidation of the Question and not to proceed with marking was “the only option”. 181.The Deputy Chairman thought the revised draft marking scheme was still problematic because it was drafted to be “devoid of value”, meaning candidates are expected to present and compare evidence from both sides (harm and good) before reaching a conclusion, but it had no regard to the fundamental values stated in the C&A Guide. Candidates should not be encouraged to come up with an answer which would score points but which contradicts some commonly accepted values including the regard for human life and dignity and the quest for peace, cooperation and prosperity. This “devoid of value” approach would seriously defeat the primary goal of nurturing values and attitudes in secondary education. 182.After reviewing the original and revised draft marking schemes, Council members considered that it was impossible to devise a fair and objective marking scheme for the Question, and therefore marking should not proceed if the Question was to be invalidated. 183.The different options of mark adjustment were then considered, on the explanation by the D-EAR, and a description of the pros and cons and fairness of each option. The five options considered and recommended were:
184.The Secretary General mentioned that usually mark adjustment of examination irregularities should be deliberated in the Standing Committee and then endorsed by Public Examinations Board (“PEB”), but the Council had overriding power to make a decision on the mark adjustment option. In view of the exceptional circumstances and the urgency of the matter, some members suggested taking a flexible approach, namely that the Council (instead of the PEB) approve the mark adjustment option. Five PEB members were anyway in attendance at the 2nd Council Meeting. Essentially, the view was taken that there should be an announcement as to the invalidation and the mark adjustment “in one go” as “a whole package”. 185.The minutes also record that members discussed if there were other alternatives to invalidation of the Question, for instance to invalidate the whole of question 2, to have re-examination, to re-sit examination for a question which carried merely 8 marks, or to delete the whole examination paper. After deliberation, the Council members considered that “these were non-options due to time constraint, unfeasible arrangement, and unfairness to candidates”. 186.By a majority of 12 votes against 1 vote (and 1 abstention), the Council resolved to invalidate the Question, and that the Question would not be marked and would be removed from HKEAA’s database. It was also resolved that the Council should decide the mark adjustment mechanism, and it adopted Option 5 (being the higher of the imputed scores under Option 2 and Option 3). The minutes record that the Council believed that Option 5 catered for both the targeted knowledge and the targeted abilities to be assessed in the examination, and the mark adjustment would be based on the candidates’ performance in these two aspects, whichever is stronger. 187.Members then discussed how the Decision should be communicated, and discussed that the public message should explain the justifications for the invalidation, which included the following:
188.Members are also recorded to have supported disclosing the result of initial screening and explaining the reasons of the impossibility to produce a fair marking scheme for the purpose of substantiating the decision of invalidating the question. 189.In his evidence, Dr So also identifies that the Secretariat had circulated an email to all Council members summarising the differing views on the controversy over the Question from different news sources. They included a passage on the article written by the former Secretary General of the HKEAA. Council members also received, but only after the meeting, the survey conducted by the Professional Teachers Union on 21 May 2020. 190.The marking of the History Examination, including HP1 but without marking the Question, was due to have taken place between 24 May and 18 June 2020. That and other key dates relating to the examination and the JUPAS timetable are shown in the following summary table:
L. The EDB’s Evidence 191.In order to avoid confusion, I shall refer to the EDB’s deponent, Chan Tsui Wah as “Mrs Hong”, as she is described in the minutes of the two Council Meetings (see above). Mrs Hong is the Deputy Secretary for Education (5) of the EDB and head of the Curriculum and Quality Assurance Branch, in which role she says she gives “steer” to formulating strategies for enhancement of the quality assurance and accountability mechanism in the education sector. She is responsible for directing the delivery, development and alignment of professional services rendered by the Curriculum Development Institute (“CDI”), Education Infrastructure (“EI”) and Quality Assurance and School-based Support (“QASBS”) Divisions under her purview. 192.Her affirmation is split into three main parts relating to (1) the role of the EDB in the HKDSE and the interplay between the EDB and the HKEAA; (2) the EDB’s view on the Question; and (3) the EDB’s responses to certain allegations raised in the Form 86. 193.As to the role of the EDB, Mrs Hong identifies that the CDI is the division of the EDB which specialises in curriculum development-related work of the subjects under different key learning areas and cross-curricular areas from kindergarten to primary and secondary stages. On the advice of the CDC, it is the responsibility of the EDB to decide on matters relating to curriculum development including for senior secondary level. 194.As to the membership of the HKEAA Council, there are two EDB officers currently serving. Mrs Hong is the representative of the PS(Ed), and Dr Chan – the Principal Assistant Secretary (Curriculum Development) (“PAS(CD)”) is the representative of the Chairman of the CDC, and does not serve in her capacity as PAS(CD). The views she expresses to the Council are those of the CDC Chairman, and may not necessarily reflect the views of the EDB. 195.There are various channels within the HKEAA for EDB’s policies, considerations, directions and approaches in curriculum development endorsed by the EDB and those being deliberated by the CDC to be made known to the HKEAA. Besides, the CE may give the HKEAA directions of a general character as to the discharge of its functions in relation to matters appearing to the CE to affect the public interest, with which the HKEAA shall comply. So, says Mrs Hong, the provisions of the Ordinance reflect the intent that the Government (including the EDB) has an intrinsic role to monitor the HKEAA’s activities and (if necessary) intervene as appropriate. 196.In this regard, Ms Po points out the possible conflict between the evidence of Dr So and Mrs Hong. Having identified that the HKEAA is not a servant of the Government, Dr So has described the relationship between the HKEAA and the EDB as a ‘strategic partnership’. On the other hand, Mrs Hong regards the EDB’s role as monitoring HKEAA activities and intervening if the EDB thinks it is necessary and appropriate. I acknowledge that Mrs Hong made those points at the end of a long paragraph identifying various responsibilities for the EDB vis-à-vis the HKEAA. But the way in which matters are put perhaps describes less of a partnership than a master-servant relationship. 197.As Ms Po submits, that viewpoint certainly seems to have informed the way the EDB went about matters. It publicly condemned the Question, and it publicly “requested” invalidation, apparently without first speaking to, or within, the HKEAA. As the minutes of the Council Meetings identify, at least some members of the Council think it would have been better if the EDB had communicated with the HKEAA before publicly requesting invalidation of the Question. I agree. Council members were also alive to the fact that the actions of the EDB outside the HKEAA Council Meetings gave rise to the risk that people might perceive the HKEAA as bowing to political pressure if it were to decide to invalidate the Question. 198.Of course, in this context, I also accept Mr Dawes’ submission that what is relevant for present purposes is how the HKEAA regarded its own independence and powers, not how they might have been regarded by the EDB (if different). 199.As regards the History C&A Guide, Mrs Hong refers to Chapter 1, Sections 1.2 (fundamental values and attitudes commonly held in our community and across other societies), 1.3 (approaching past and current events in an impartial and empathetic manner, using a variety of perspectives, but cultivating national consciousness), 1.4 (cultivating positive values and attitudes, to become responsible citizens with a sense of national identity and a global perspective), and 1.5 (an ability to understand the broad sweep of local, national, regional and world history in the 20th century, and the ability to see the past from the standpoint of the people under study). She also refers to Chapter 2, Section 2.1 (theme of modernisation and transformation in 20th century Asia). (More detailed quotes from those sections can be seen above.) 200.As to the HKDSE, Mrs Hong describes it as “a high-stake public assessment”, permitting students to apply for admission to tertiary institutions in or outside of Hong Kong as well as for employment, with a particular reference to the Civil Service Bureau in recruitment of civil servants. 201.Mrs Hong refers to the guiding principles of public assessment by reference to Chapter 5 Sections 5.3 and 5.5 (alignment with curriculum; fairness, objectivity and reliability; inclusiveness). 202.Hence, Mrs Hong says, in short it is of the utmost importance that the assessment is aligned with the senior secondary curriculum goals, objectives, scope of learning contents specified, recommended teaching approaches and suggested assessment modes as laid down in the C&A Guides. She refers to the “reality … that high stake public examinations such as the HKDSE are often the baton that directs the way students approaches [sic] their studies”, and the effect of past questions on learning and teaching is far-reaching. Thus, she says, “although question setting, vetting and approval is the HKEAA’s responsibility, the EDB has a legitimate concern in the design of questions to ensure that students would not miss the emphasis and major objectives of their studies, and could not stay silent and do nothing if problems about the questions are found”. But because of confidentiality before examination, the EDB’s feedback to the HKEAA on the design of the questions, if any, can only be given after the examination has taken place. 203.As to the EDB’s views on the Question, Mrs Hong says that the HP1 was received by CDI from the HKEAA at around 1:40pm on the day of the examination, 14 May 2020. The History team of the CDI then immediately reviewed the paper and considered whether the questions set were in alignment with the subject curriculum and how good the paper was in testing the capabilities and skills the History curriculum set out to cultivate in students. 204.Mrs Hong says that the document was produced on 14 May 2020. The copy originally provided has been redacted, including to remove any date or time which might appear on it, but during the hearing Mr Suen met my request to see an un-redacted copy. I have received it on the same confidential basis as the un-redacted marking scheme. But I can see from the un-redacted copy that it was a requirement for the CDI to provide its report by 5 pm on 14 May 2020, and to deal with FAQs to provide for the possibility of dealing with any media requests. 205.Mrs Hong says that, from both the perspective of curriculum and assessment, the History team of the CDI considered that the Question was problematic in design, on which they prepared and submitted a Subject Brief to report to senior management of the EDB their initial views of the problems of the Question. The Subject Brief (as redacted) contains the following:
206.I note that the CDI report does not make the point the EDB press release made a few hours later about hurting the feelings and dignity of the Chinese people who suffered. 207.Mrs Hong says that “[a]fter initial discussion, research and consultation with outside experts and frontline/retired teachers, EDB came to the firm view that the Question was defective from a professional point of view and should be invalidated from the education and assessment perspectives”. As she puts it, a decision on how to tackle the problem of the Question had to be made by the HKEAA promptly in order not to delay the commencement of marking of the answers. 208.Mrs Hong does not say how long it took for the “initial discussion, research and consultation with outside experts and frontline/retired teachers” before the EDB reached its “firm view”. But it was a hurried process if it was achieved between 5 pm (or whenever when the CDI first reported on HP1) and 11:31pm when the EDB issued a press release expressing that it “deeply regrets and condemns the design of such a question”, and making the demand for the HKEAA to follow up. I also note that Mrs Hong does not suggest that, before the press release was issued and the demand made, there was any contact with anybody at the HKEAA. 209.Mrs Hong provides a list of 6 staff members of CDI who were consulted on the afternoon of 14 May 2020, and a list of 10 staff members of CDI who were consulted for professional advice on 15 May 2020 and thereafter. But the two lists provided as exhibits to the affirmation actually seem to identify that 5 of the 10 consulted on or after 15 May 2020 had already been consulted on 14 May 2020, so did not add to the number. Nevertheless, all of them were registered teachers, possessed History-related qualifications and teaching experience, including serving as History subject Panel Heads, and all of them possessed higher degrees or even a doctoral degree in History or Chinese History. Mrs Hong and a colleague spoke to 2 professors, one with expertise in psychometrics in assessments and measurements, who apparently considered the Question to be misleading as it provided sources in such a way as to lead candidates to perceive the Question as debatable either way, and it would be unfair from professional perspective to mark a misled answer. 210.Mrs Hong then deals in her evidence with the two HKEAA Council Meetings, and the expression of the EDB’s views (which I have already set out above). Again, as Mrs Hong puts it, “in a nutshell” the main problems with the Question were as were later summarised in Annex 2 of the Legislative Council Panel on Education discussion paper for 25 May 2020, under the headings: (a) candidates easily misled by the sources provided; (b) failure of question setting to meet the aims and objectives of the C&A Guide; (c) inappropriate to set as an open-ended question; and (d) impossible to devise a marking scheme. 211.In the Panel discussion paper itself, the points were canvassed as follows:
212.In her affirmation, Mrs Hong essentially repeats some of that material, but perhaps also adds to it with the benefit of further research performed since 21 or 25 May 2020. 213.Overall, the EDB took the view that, if the Question is not invalidated, the public interest will be seriously affected. One of the reasons was expressed by Mrs Hong in the following way:
214.Personally, I would have thought that it is not contrary to – but, rather, it is actually consistent with – universally-accepted-value perspective to weigh advantages against disadvantages, or good against harm, by reference to events over a period of history. If there are ‘apples and oranges’ to be compared, that point can be made and explained. Surely that is what Section 1.4 ‘Curriculum Objectives’ of the C&A Guide has in mind when it says, amongst other things, that:
215.In Mr Suen’s submissions based on the EDB evidence, he submits that the Question grossly understates the nature and magnitude of the sufferings of the Chinese people in the war. That proposition is difficult to follow, as there is no statement at all in the Question about the nature and magnitude of the sufferings of the Chinese people and the war. Indeed, that suffering is part of the expected candidates’ own knowledge – the Secretary even called it “common knowledge” – which they were asked to deploy in answering the Question. The submission goes on to say that the Question suggests “that the war atrocities and sufferings of the Chinese people at the war are a mere “弊” (“disadvantage”) that can be compared and weighed with other “利” (“advantages”) brought by Japan to China”. To my mind, the Question does no such thing, and the criticism is based upon the fallacy that “comparing and weighing” is the same as “equating”. It is not. 216.Indeed, that is similar to the incorrect equation of “balanced” with “balancing”. “Balancing” one factor against another does not mean the same as that they are “balanced”, such as in the phrases “equally balanced” or “finely balanced”. It actually means deciding what weight to give to each factor and to look at the comparative weight of each factor. It is a task in which Courts, for example, are engaged on a daily basis. Sometimes, after balancing factors one against another the answer is clear, precisely because the weight to be given to one factor or group of factors is much less than given to another. 217.In the context of the Question, it might be thought that the better students would readily appreciate – from their own knowledge that they were asked to use – that the harm/disadvantage caused by the Japanese invasion of China outweighs (probably vastly outweighs) any benefit which the Japanese might have provided to China earlier in the period under consideration. 218.That there is a “mainstream consensus” sharing that view does not, to my mind, prevent the possibility of proper debate in a meaningful way. Indeed, surely the mainstream consensus is actually the result of there having been a proper debate in a meaningful way. I would have thought it is preferable for students to be required to engage their own critical thinking capabilities so as to reach their own conclusions, rather than be required simply and unquestioningly to accept a stated view foist upon them. The constant refrain that there can be no discussion smacks of “four legs good, two legs bad”. 219.As to the points made for the Applicant in the Form 86, Mrs Hong denies that there was any “interference” or that the EDB or the Secretary or the CE has acted “unlawfully” and/or “impermissibly”. She explains the EDB reaction to the significant issue raised following public and media attention to the Question on 14 and 15 May 2020. 220.Mrs Hong exhibits an article written by her entitled ‘What is history education all about?’ published on the EDB website on 17 May 2020 explain to the public the aims of History education and the educational rationale behind the request for invalidation. I am not sure why (before any actual decision could be made by the HKEAA) the EDB felt the need to argue its case publicly, rather than in the HKEAA Council on which it has a voice, and where the meetings and discussions are supposed to be confidential. In passing, I would note that if the principles set out in that article were to be applied equally to the other questions on HP1, it seems to me that at least some of those questions would risk falling foul of the analysis and also be liable to possible invalidation. I may return to this point below. 221.In his oral submissions, Mr Suen suggested that the EDB’s public statements were for the purpose of providing ‘transparency’, and to address public concerns and also enable the public to respond (either for or against invalidation). But, on Mr Suen’s own arguments, it was neither necessary nor appropriate to invite general public response to whether the Question should be invalidated; that was a question for the HKEAA Council to decide. Nor do I see much force in Mr Suen’s submission that the EDB would been criticised if it had only dealt with the matters within the HKEAA, as that might be seen to have been acting ‘covertly’. Of course, I see the “damned if I do, damned if I don’t” point. But in those circumstances as in others, usually the right thing to do is to do the right thing. 222.Mrs Hong and the EDB are also not aware of any official document by the HKEAA on any “mechanism” for invalidating public examination questions. Here, she says, the major problem with the Question is not one of its ability or inability to discern and differentiate students’ abilities, but is that it is inherently flawed and not consistent with the History subject’s curriculum rationale, aims, objectives and broad learning outcomes. 223.Mrs Hong says that this kind of problem is unprecedented, and is complicated, and that (a) candidates’ responses cannot be analysed statistically and quantitatively, and (b) the quality of the Question cannot be determined “retrospectively” by the quality of the answers. Of course, when one looks at what happened, it can be noted that (a) the candidates’ responses were supposedly analysed statistically in the preliminary screening, and (b) the quality of the question was in part determined “retrospectively” by reference precisely to the quality of the answers thought to have been elicited. 224.As to any discussion of academic freedom, Mrs Hong says that it should be within the proper context of the Decision to invalidate a question in a public examination. Curriculum, learning and teaching, as well as assessment form an integral whole. Because of the content of the History C&A Guide, secondary education is not comparable with tertiary education where university teachers are generally given greater liberty in curriculum design and teaching methods. As Mrs Hong puts it in the peroration of her affirmation:
225.That seems to me to amount to a criticism of some teaching, or of some teachers, probably not relevant to the consideration in this case as to the Question (except insofar as it might reveal a different underlying concern about the Question, or the views that might be expressed by those answering it). I do not think the peroration answers, as Mrs Hong suggests – nor is it really relevant to – the Applicant’s allegation that “certain academic viewpoints and opinions can no longer be held, expressed or pursued”. 226.Whether there is any merit in that allegation I can deal with below, in the context of Ground 3. M. The Parties’ Roles in Argument 227.Obviously, it is for Ms Po (and Mr Tam, who dealt orally with Grounds 4 and 5) on behalf of the Applicant to seek to make out the argument deployed in support of the six separate Grounds said to justify judicial review. 228.Similarly, it is primarily for Mr Dawes on behalf of the HKEAA, as the decision-maker, to respond to the Applicant’s grounds of challenge against the legality of the Decision. 229.On behalf of the EDB, Mr Suen recognises that fact. Therefore, whilst Mr Suen has responded to each of the six grounds in turn in the sequence as presented by the Applicant, Mr Suen has emphasised that the EDB’s primary aim is to address certain allegations or accusations made by the Applicant against the EDB, the Secretary and/or the CE. Mr Suen has also sought to address briefly a few other matters with a view to assisting the Court to understand the EDB’s position on the matters arising from the Applicant’s Form 86. 230.Therefore, in my consideration of the competing arguments below, I shall not refer to the submissions of Mr Suen if they essentially repeat or duplicate Mr Dawes’ submissions on the same points. In any event, despite the efforts of all Counsel in producing materials on a tight timetable, I mean no disrespect to those efforts that I do not rehearse or traverse all of the points covered by them. N. Ground 1: By-passing Established Post-Examination Review Procedure 231.Ms Po relies on the principle that any discretionary public law power must not be exercised arbitrarily or with partiality as between individuals or classes potentially affected by it. The rule is said to provide consistency in decision making, and some certainty about the application of rules: see R (Hussain) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin) at §46. Therefore, Ms Po suggests that it is important for a public authority to follow an established procedure so that its decisions are rational, consistent and transparent. But, she says, in this case the Decision was an arbitrary exercise of power, which deliberately failed to invoke an established mechanism to deal with potential invalidation of an examination question. 232.Ms Po submits that on the undisputed evidence there are two relevant and well-established procedures which ought to have been followed. (1) First, there is a post-examination review procedure, hitherto followed by the HKEAA, where the results of the review are used to assist the setting of examinations in future. This procedure is to be found in the QAF, and involves: external vetting of examination papers and scripts; post-examination review; internal audit and risk monitoring; examination paper quality audit (EPQA); and internal post-mortem meetings. (2) Secondly, there is a procedure involving a statistical analysis after marking, to ensure that subject experts would have the assessment data to analyse the question so as to make an informed decision as to whether the question should be invalidated. 233.But in this case, neither procedure was invoked, and Ms Po suggests that marked a procedural impropriety in public law terms. As a result, the Question was not marked, and no subject specialists or experts reviewed the Question prior to the Council’s consideration whether or not to delete it. Hence, various steps were bypassed which would otherwise have required professional input at the HKEAA’s disposal for a proper review. Orally, Ms Po focused on the first point, based on the QAF. 234.The thrust of or underpinning the submission – which, of course, is a theme which permeates the entirety of the Applicant’s case – is that, notwithstanding that the HKEAA is (or is supposed to be) an independent authority, it approached the matter in an arbitrary manner to coincide with the directions given by the EDB and the Secretary for Education, in effect to take an unquestioned adoption of the Government position. 235.Mr Dawes accepts that where a mandatory procedure is set out in a statute, the decision-maker must follow such a procedure. But, absent any specific statutory requirement, what procedure would be most appropriate is for the decision-maker to decide. Of course, he accepts the procedure adopted must be fair. But the concept of fairness is not set in stone and is itself a flexible, changing concept depending on the context in which it is exercised: see, for example, Ch’ng Poh v Chief Executive (unreported, HCAL 182/2002, 3 December 2003, Hartmann J) at §§21-22, adopting what was said by Lord Mustill in R v Home Secretary, ex parte Doody [1994] 1 AC 531 at 560. 236.I agree. For any challenge to succeed, it is not enough for the Applicant to show some procedure other than the one adopted would have been better or fairer. Rather, the Applicant must demonstrate that, viewed objectively, the process chosen was in fact unfair. In making the relevant assessment, the court must constantly bear in mind that it is to the decision-maker, not the court, that the legislature has entrusted not only the making of the decision but also the choice as to how the decision is made. 237.In this case, there is no statutory requirement imposed on the HKEAA to adopt any particular procedure in considering whether or not to invalidate an examination question. As noted above, section 3(11) of the Ordinance gives power to the HKEAA to regulate its own procedure. 238.I also accept that the post-examination review procedure referred to by the Applicant was not really apposite to the situation presented, which was unprecedented. That procedure is one intended to be conducted after conclusion of the examination, including the marking and the announcement of results. Its primary aim is forward-looking, that is to ensure any necessary improvements in the quality of examination papers and marking in future. As Mr Suen says, it is essentially a kind of annual internal audit and global post-examination review. 239.In his evidence, which I accept, Dr So also points out that the HKEAA does not in fact have prescribed procedures for handling the invalidation of conventional and data-based questions. The approach taken to invalidating multiple choice questions has no application to a very different type of question. 240.I accept that during the 1st Council Meeting, Dr So himself is recorded as having expressed that it would be more appropriate in considering invalidation to “follow the current established procedure/mechanism making statistical analysis possible after marking”. But Dr So also says in evidence that whilst the Council explored whether it would be possible or beneficial to proceed with the marking of the Question, the Council decided not to because (a) it was impossible for the Question to be properly marked since no reliable marking scheme could be devised to fairly assess candidates’ performance; (b) continuing with the marking of the Question could bring irreparable damage to HKEAA and other stakeholders, especially when candidates might misinterpret and misuse markers’ comments on their answer scripts; and (c) marking may convey a distorted historical view to candidates and intensify the hurt feelings of some part of the society. I am not so sure about the validity of points (b) and (c), but point (a) at least shows that the view was taken by the HKEAA Council that there could not be a statistical analysis carried out before invalidating the Question. 241.Mr Dawes submits that that is a matter of academic judgment, and the Court is therefore not in a position to intervene. I accept that submission as a matter of generality, but would point out a potentially problematic mismatch. On the one hand, the HKEAA says that because no reliable marking scheme could be devised to make a fair or objective assessment from which statistics might be drawn, no statistical analysis could be made. But on the other hand, from the minutes of the two Council Meetings as a whole, it is clear that significant weight was placed on the statistic that 38% of the candidates appeared to have reached a particular (and unexpected) answer. 242.That is problematic, both because that percentage statistic came from only a preliminary screening and its reliability must be open to at least significant doubt, and because of the inconsistency. I am not sure the HKEAA can have it both ways. Either no statistics can be used in considering whether or not to invalidate the Question (because they cannot be reliably obtained), or statistics can be used (in which case they ought to be reliably obtained). Here, what was adopted was some sort of middle or fudged path; though no actual marking was conducted so as to permit any statistical analysis, there was some form of assessment through a preliminary screening process which yielded statistics upon which reliance was then placed. 243.But perhaps the answer is that, where there is no specific pre-determined or prescribed procedure, it was a matter for the HKEAA as to what information to take into account, and what weight to give to it. Some might feel that the statistics from the only preliminary survey of the examination scripts was of little value, but others might disagree. The figures were considered and discussed by the HKEAA Council, and each individual member must be taken to have decided what weight to give them. In essence, even partial statistics or partial information is still open for use if the decision-maker thinks that is the appropriate process to adopt, and the decision-maker does not lose sight of the fact that the statistics or information are only partial, or the result of only preliminary survey. 244.Mr Dawes submits that the Decision to invalidate the Question was made after thorough and careful consideration by the HKEAA Council. That is correct. There were two meetings, which together lasted 12 hours. The Council members in attendance included experienced professionals drawn from the school sector, tertiary institutions and government bodies. There was “professional input” from experts whose views had specifically been canvassed. After lengthy deliberation and exchange of views and opinions, the matter was put to a vote and a collective decision was made at the end of the 2nd Council Meeting. In between the meetings, there had also been consultation of three subject experts, whose views were summarised and considered at the 2nd Council Meeting. 245.So, says Mr Dawes, there is no basis for the Applicant to suggest that the HKEAA’s adopted procedure was unfair or wrong, or that the HKEAA’s professionalism had been compromised in any way during the decision-making process. On the evidence, I agree. 246.Ground 1 must fail. O. Ground 2: Irrelevant Consideration 247.Ms Po says that Ground 2 is related to Grounds 3 (failure to consider relevant factors) and 6 (Wednesbury unreasonableness). This follows from the application of appropriate legal principles, which require a decision-maker to consider all relevant factors and to ignore irrelevant factors, when making the decision. 248.As Ms Po says, in a submission which I think is uncontroversial, normally the relevant factors include any statutory criteria, any relevant policies, as well as the merits of the individual case. Political factors are normally irrelevant, unless they are written into the statute. Of course, a court may find that a decision-maker has taken into account irrelevant considerations, even when the decision-maker denies that such irrelevant considerations were taken into account. 249.There is also no dispute that the surrender of independent judgment by a public body to a third party’s political instruction, persuasion or pressure is a recognised ground of review: see Sharma v Brown-Antoine [2006] UKPC 57 at §14(5). 250.Mr Dawes relies on a passage from De Smith’s Judicial Review 8th Ed at §5-131 that it may be immaterial that an authority has considered irrelevant matters at arriving at its decision if it has not allowed itself to be influenced by those matters. But the same paragraph goes on to identify that if the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence. As a general rule, it is enough to prove that their influence was material or substantial. Indeed, it seems to me that in many cases there will be real practical difficulties in identifying as immaterial the influence of irrelevant factors, once the taking account of such irrelevant factors has been established. 251.But Mr Dawes is on firmer ground when he refers to Chan Ka Lam v The Country and Marine Parks Authority (unreported, HCAL 54/2014, 27 April 2017, Au J) at §§109-112, where the Court repeated that when it is alleged that a decision-maker has failed to take into account a relevant consideration in the exercise of a statutory discretion, it is important to distinguish between:
252.Au J (as he then was) defined the third category as “discretionary considerations”, and held further that in relation to the discretionary considerations to the extent that the decision-maker has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for him, not for the court, subject to Wednesbury irrationality. As he summarised, save for what has been prescribed by statute, it is for the decision-maker to decide what are the relevant or irrelevant considerations, subject only to a Wednesbury unreasonableness challenge. 253.Here, Ms Po submits that the Decision is illegal, because it can be inferred from all the circumstances that the HKEAA has taken into account materially irrelevant considerations, in particular the “request” and/or direction of respectively the EDB and the Secretary that the Question should be invalidated. Whilst Ms Po recognises that the PS(Ed) – or his/her representative – is a member of the HKEAA Council, she says the circumstances lead to an inference that the HKEAA took into account matters going beyond the purported professional views of the EDB delivered in a regular manner, within the context of a regular meeting of the HKEAA. 254.Indeed, Ms Po says that the views of Government, as delivered by the EDB and the Secretary had been conveyed in a most high-profile and threatening manner. She refers to the use of language such as in the EDB press release which stated that it “condemned” the design of the Question and “demanded” the HKEAA to “follow up”, and to the subsequent further threat of unspecified action against the HKEAA if it did not take appropriate “follow-up” action. Ms Po also refers to the EDB spokeswoman’s statement identifying the power of the CE to give direction to the HKEAA, as constituting an implicit threat to take appropriate action according to the officials’ view, and to the CE’s own statement that the Question was a “professional error”, which statement usurped the professional function and judgment of the HKEAA. That statement was also accompanied by the CE stating that she would not “evade the issue” of invoking the power granted to the CE, if needed. 255.I think there is some force in these criticisms. Perhaps particularly where the EDB has a “voice” within the HKEAA from its representation on the HKEAA Council, the type and the strength of the comments made in public statements by very senior public officials might be viewed as some attempt to create external pressure. No doubt, the statements were also intended in part to encourage a particular public viewpoint, as well as to appeal to others who had already expressed, or might be expected to express, like views. I also take into account that the deliberations of the HKEAA Council are ordinarily expected to remain entirely confidential. 256.It is also correct that the EDB can be taken to have expressed firm views both inside and outside of the HKEAA – and those expressed outside almost certainly have a political dimension. But I am not sure those matters amount to any abuse of power of the sort suggested by Ms Po. 257.As Mr Dawes submits, where this case falls into the third category of discretionary considerations, and an appropriately wide margin of appreciation is to be afforded to the decision-maker, it is necessary to examine the general tenor of the discussion between Council members, rather than perhaps to focus on individual views expressed or precise terminology used by individual members. In support of that proposition, Mr Dawes relies on R v Exeter City Council ex parte JL Thomas and Co Ltd [1991] 1 QB 471 at 483H-484A, where Simon Brown J expressed that point, because it is necessary to bear in mind that the committee members in that case were taking a collective decision (there, on a planning application). The emphasis of the point is that it would be wrong to say that, because somebody in debate has put forward an improper ground, the decision ought to be set aside has been found on that particular ground. I think the same can be said when looking at things said outside the decision-making meeting. 258.Though in my review of the minutes of the two Council Meetings above, I have looked at particular matters identified by particular members present and participating, I have not rehearsed in this judgment all of what was recorded in the minutes. I have also not lost sight of the general tenor of the discussion. 259.In his evidence, Dr So says that the Decision was based on professional, curriculum and assessment considerations, with the candidates’ interests in mind. He confirms that the CE’s comments were not discussed by Council members in the 2nd Council Meeting. He does not agree with the Applicant’s label that the EDB’s viewpoints were “political factors”, or that the decision was prompted by the directions/comments given by the EDB or the Secretary. Rather, he says that the HKEAA kept to the paramount principle of professionalism and conducted an informed deliberation, with the Council members exploring different perspective and options. For example, the Council insisted on obtaining further subject expert views for the purposes of the 2nd Council Meeting, which were then considered before making a final decision. 260.As to the CE’s remarks, they plainly were not made in time to have been taken into account at the 1st Council Meeting, and there is no suggestion that they were referred to at the 2nd Council Meeting. Even if the remarks were somewhere at the back of individual Council members’ minds, I do not think it can be said that they must have played any part in the HKEAA’s decision-making process. I also accept that, in response to media enquiries following the CE’s public comments, Dr So identified that any invalidation of the Question was a professional matter requiring independent professional consideration. 261.I also accept that the EDB’s views on the Question were relevant to the HKEAA’s consideration as to whether or not to invalidate that Question. As both Mr Dawes and Mr Suen point out, the composition of the HKEAA Council specifically includes the PS(Ed) (or her representative), which is a statutory recognition of the role that the expression of the EDB’s views will have on the conduct of business by the HKEAA Council. It does not follow that the expression of its views must be the expression of political views. 262.I also accept Mr Dawes’ submission that there is no reason why the HKEAA should not have regard to the EDB’s views expressed through its representative or representatives on the HKEAA Council. The EDB does oversee secondary school teaching and curriculum development in Hong Kong, and so might be expected to have some input (Mr Dawes suggests the phrase “valuable insight”) on matters such as whether the Question deviated from the curriculum objectives and whether an average Secondary 6 candidate would be able to handle the Question. 263.I accept that the general tenor of the discussions in the two Council Meetings was to seek to ensure a decision was made as a matter of fairness and credibility, based on professional and academic considerations, rather than political ones. This is so, even though the matters canvassed at the Council Meetings included arguments from members (in particular the EDB members) which had been previously stated firmly in the external, and perhaps political, context. There seems to me to be no proper basis to find that any individual member of the HKEAA Council in effect abdicated his or her independent professional judgment in the discussions and voting which led to the Decision. 264.There is force in Mr Dawes’ point that, just as Courts have to make decisions on legal questions even if they arise in political or socio-economic circumstances, so must the HKEAA have made a decision on whether or not to invalidate the Question even though some people had tried to make it a political question. From the point of view of the HKEAA, of course, it was not a political question and the materials identify that it was not addressed from a political viewpoint. 265.I acknowledge, as I have done against the chronology, that there appears to have been a stark volte-face in the Decision from the stance taken by the HKEAA in its original press releases. I do not place any particular weight on the fact that the press releases were issued before even the 1st Council Meeting, as those press releases must have been approved and authorised by some appropriate person. But, following the discussions in the two Council Meetings, with the benefit of the materials produced for those meetings, it was perfectly open to the HKEAA legitimately to have formed a different view after further, and perhaps more mature, consideration. 266.By the end of the 1st Council Meeting, an initial view – but only an initial view – had been formed that the Question was problematic and that it should be invalidated. A final view was expressly deferred until the opinions of subject experts might be obtained, and further discussion might be held. It is correct that the stance taken by Mrs Hong at the beginning of the 2nd Council Meeting – pushing hard in her suggestion that a final decision had already been made, and that the deferment was merely to obtain further information which might justify that decision – was itself unattractive. But Mrs Hong failed in that regard, and the discussions in fact continued until a final decision was actually made. 267.On the face of the minutes, and as shown in the press release announcing the Decision, various reasons were given for it. Those reasons included: (a) the Question failed to comply with the HSI Guidelines; (b) the sources attached to the Question were partial, one-sided, and failed to provide sufficient context; (c) those sources were on topics which fell outside curriculum, making it difficult to discriminate the performance of candidates; (d) the Question failed to deliver the learning objectives of the C&A Guide; (e) the question design, using the words “good” and “harm” were inappropriate in context; and (f) it was impossible to devise a meaningful and appropriate marking scheme for the Question. 268.Whilst there may be plenty of scope for others to disagree with those particular reasons, and for pointing out the fallacy or circularity in some arguments, those are ultimately matters of academic judgment, being matters within the purview of the HKEAA. 269.That the Decision ultimately entirely chimed with the desire of the EDB – and I think it is right to say here both the professional and the possibly political desire of the EDB/Secretary – does not necessarily mean that the Decision was simply the result of the abdication or the surrendering of independent thought, or of the improper taking into account of political considerations. That the language used in the Decision was redolent of – sometimes in terms reflecting – the language used by the EDB and senior officials outside of the HKEAA Council is probably explained by the use of the same or similar language by representatives of the EDB in discussions at the two Council Meetings, and by the fact that ultimately the HKEAA reached the collective view in agreement with those views expressed. 270.As Mr Suen emphasises, the EDB found the Question problematic for four major reasons, and whilst one may rationally debate whether such reasons are apposite or not (as to some extent I have done), it is a grave assertion to say that the EDB’s reasons are a sham and nothing but political instruction. I accept that if the EDB takes the view that there is a significant problem with the question set, perhaps particularly if it has aroused public concern and controversy, the EDB has a role to play in acting with regard to the public interests at stake. The primary public interest is, of course in safeguarding the credibility, fairness and validity of the HKDSE examinations. 271.Contrary to Mr Suen’s submission, I am afraid I do think that some of the public statements made by the EDB and/or the Secretary for Education were conveyed “in a most high-profile and threatening manner”, just as Ms Po submits. But those statements were made publicly outside the deliberations of the HKEAA Council, and I do not think the evidence demonstrates that they created improper pressure on Council members, or forced Council members somehow to jettison their own independent thoughts and decisions. As Mr Suen submits, the HKEAA Council members are educated individuals and should be able to make their own independent decision, taking into account relevant factors and giving them such weight as they think appropriate. Again, I do not think it would be fair to infer from the strength of opinion, or forcefulness in presentation, anything which would render the decision-making process unlawful. 272.I also accept Mr Suen’s submission that the facts in the authorities relied upon by the Applicant in support of this ground of challenge were factually different from the facts of the current case. 273.Ground 2 must fail. P. Ground 3: Failure to have Regard to Relevant Considerations 274.Ms Po seeks to put the Applicant’s challenge into a constitutional framework by reference to certain provisions of the Basic Law. 275.Ms Po refers to Article 34 of the Basic Law which provides that:
276.She also refers to Article 137 of the Basic law, which provides that:
277.Lastly, Ms Po points to Article 39 of the Basic Law, which entrenches the International Covenant on Economic Social and Cultural Rights (“ICESCR”). Article 13 of the ICESCR provides for the right to education and, as embedded in this right, the entitlement to academic freedom. 278.Academic freedom includes the freedom to “pursue, develop and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing”. It also includes “the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfil their functions without discrimination or fear of repression by the State or any other actor…. The enjoyment of academic freedom carries with it obligations, such as the duty to respect the academic freedom of others, to ensure the fair discussion of contrary views, and to treat all without discrimination on any of the prohibited grounds”: see General Comment No. 13: The Right to Education (Art. 13) by the ICESCR Committee. 279.Whilst these constitutional provisions may provide the general context of matters relevant to an individual’s right to pursue chosen education, and to express opinions freely, I am not sure they are really of much assistance in determining the issues on the current application. 280.Ms Po submits that the HKEAA failed to give any or any sufficient regard to the effect or possible effect of the Decision in interfering with the pursuit of academic freedom. She refers to both Article 34 and 137 of the BL. 281.The submission is that, by the Decision to invalidate the Question, the HKEAA has taken upon itself to indicate that certain academic viewpoints and opinions can no longer be held, expressed or pursued. Hence, this has in turn a direct or indirect effect on the teaching of the History subject, and violates academic freedom generally, and in particular in the Secondary School sector. 282.Ms Po also relies on the fact that there was a failure to take account of important professional views, which should have informed any decision whether or not to invalidate the Question. This flowed partly from by-passing the post-exam procedure or the procedure previously adopted for invalidating multiple-choice questions, meaning the HKEAA failed to take account of the views which would have been available from the Moderation Committee and Subject Committee as well as from statistical analysis following marking. Ms Po also relies on the failure to adopt the professional views of the former Secretary-General, and the result of the poll conducted by the Professional Teachers Union (see above). 283.In his evidence, Dr So says that the Council members had been provided with summaries of media reports and articles on the controversies and, given the high profile nature of the incident, Council members were clearly aware of the differing views in society. But it would have been impracticable and ineffective to deliberate on each and every survey, essay or report in the media. Those media sources also might be unsafe and unhelpful, not least where non-assessment professionals looking from the outside might not fully appreciate the nuances in the process. I agree, and there is also the real practical difficulty in where to draw the line between those external sources that one does take into account and those that one does not. 284.Dr So also points out that the Council already has a diverse composition of members representing views of different stakeholders. I have already identified the composition of the HKEAA by reference to Schedule 2 to the Ordinance. From the minutes of the two Council meetings, it is clear that the Council members did exchange many viewpoints, including from the perspectives of teachers and candidates. 285.But Mr Dawes submits that the right to academic freedom is in any event not a relevant consideration in the present case. Firstly, Article 34 of the BL only protects the freedom to engage in academic research: see Secretary for Justice v Commission of Enquiry Re Hong Kong Institute of Education [2009] 4 HKLRD 11 at §48. As Mr Dawes submits, the Decision obviously does not bar the Applicant from undertaking any academic research which he wishes to pursue into the relevant topics engaged by the Question. 286.As to Article 137, the same case at §§49-51 identifies that the Article recognises academic freedom only as vested in Hong Kong’s educational institutions, not in individuals. The reference to “educational institutions of all kinds” in the Article is a reference to “institutes of higher learning, universities and the like, where, in all open and democratic societies, autonomy and academic freedom are essential to their functioning”. Further, Article 13 of the ICESCR has not been incorporated into domestic law. 287.I agree. Therefore, as none of the relevant constitutional rights are engaged, I accept that there is no question of the HKEAA wrongly failing to take those rights into account when considering making the Decision. 288.There is also force in Mr Suen’s submission that there is no pleading in the Form 86 as to how the Applicant’s right to academic freedom is said to be engaged and has been violated or restricted, and how such violation or restriction (if any) fails the four-stage proportionality test. As Mr Suen also says, in a case such as the present judicial review challenge, the question is not whether the decision-maker had properly considered whether the applicant’s rights would be violated, but whether there has actually been a violation of those rights. 289.Dr So also says that as a matter of fact the Decision has nothing to do with the pursuit (or restriction) of academic freedom. Indeed, I accept that it was not the intention of the HKEAA to interfere with academic freedom, in making the Decision. 290.Although it is not in any way determinative of Ground 3, one possible area of concern is that such interference might be the effect of the Decision. Indeed, on the (perhaps political) level outside the deliberations of the HKEAA Council, the statements of senior government officials that – even as regards a 45-year period of history – there either is no room, or that there can be no room, even for discussion sounds alarmingly like a statement that there must be no discussion. The way in which was expressed did not seem to be limited to secondary education and assessment. As I have already indicated, that is at best unfortunate. 291.The geographical area and particular period of history on which the Question was set is part of the History subject curriculum. It is to be hoped that it does not become some sort of “no-go” area. Rather, it is to be hoped that teaching and assessment can be performed in alignment and with the appropriate care and sensitivity, but also objectivity, as to permit and to encourage informed debate, deploying precisely the skills identified in the C&A Guide. I do not think the Decision should have any “chilling” effect curtailing freedom of expression or academic freedom. 292.During the argument, I raised a point as to whether there was some other relevant material which the HKEAA failed to take into account. In the consideration of whether or not to invalidate the Question, the only the focus of that consideration was the Question itself. There was no comparison made by reference to any other question on the particular HP1, or similar papers from previous years. 293.The point arises from the original criticism of the Question made by the CDI, shown in its redacted report said to have been made on 14 May 2020. Under the heading that the Question “contains severely biased view and serious faults”, there are three bullet points. I have set out above the full detail of those points, but two of them might be summarised as follows:
294.But, if those criticisms are valid, they might seem to apply to at least one other question on HP1, namely question 1(c). That question is on the topic ‘Colonial rule in the Hong Kong’, and is as follows:
295.It can be seen that the form of this question is exactly similar to that of the Question. Source A is a list of the Legislative Council members in 1951, identifying them (amongst other things) by whether they were ethnic Chinese and appointed by the Governor. Source B is an adapted passage from the memoir of the first Chinese Crown Council in Hong Kong, again referring to the period 1951-1952. Both sources contain similar messages, namely of racial inequality and unfairness. Both sources relate to the same timeframe, at the very beginning of the long historical period covered by the question. In fact, even “worse” than for the Question – which had sources from the sixth and thirteenth years of a 46-year period – question 1(c) has sources from only the first and second years of a 48-year period. 296.So, it might be argued that it should have been part of the consideration as to whether or not to invalidate the Question that the criticism of it (at least to some significant extent) is equally to be made of other questions, and which might logically lead to the same conclusion on those are the questions. But this was not done. 297.However, this point was not raised by the Applicant in the Amended Form 86, and it is possible – as Mr Dawes submits – that evidence could have been provided by the HKEAA giving a simple explanation. Where the focus of this application is really by reference to the Question, and only the Question, on reflection I do not think it is appropriate to go further to consider the other questions on HP1, or any potential logical knock-on effect. I also accept that the two points for which the logic might be said to have some cross-application were only two of the points that were considered in the various discussions which led to the Decision to invalidate the Question. It is, therefore, neither fruitful nor relevant territory to focus simply on those two points. 298.In the circumstances, I refuse the Applicant’s application to re-amend the Form 86 to run this point, following my having started to explore it in exchange between Ms Po and myself. 299.I also raised in argument a possible concern that the way to deal with the consequences of invalidating the Question might have been considered only after the decision to invalidate, rather than as part of considering the decision whether or not to invalidate. On reflection, and on re-reading the minutes of the 2nd Council Meeting, I do not think that is a real concern. The minutes identify that a number of issues were discussed, including the possibility of taking some other action as opposed to invalidating the Question and the options for dealing with the consequences of any possible invalidation, before an ultimate decision to invalidate the Question was actually made. For reasons I may revisit below, I would also refuse the Applicant process application to re-amend the Form 86 on this point. 300.Ground 3 must fail. Q. Ground 4: Misinterpretation and/or Misapplication of C&A Guide 301.There can be no dispute with the principle that if a decision-maker fails properly to understand the applicable policy, the decision would be as defective as it would be if no regard had been paid to the policy: see, for example, the discussion in Leung Kam Yung Ivy v Commissioner for Television and Entertainment Licensing [2001] 2 HKC 555 at 564. 302.In the Decision, or the press release announcing it, the HKEAA stated that “the design of the question deviated from the learning and assessment objectives as set out in the [C&A Guide] of the History subject”. Where the Applicant’s criticism is that the HKEAA misinterpreted and/or misapplied the C&A Guide, it is necessary to construe that document. 303.The true meaning and effect of a policy such as the C&A Guide is a matter for the court to decide. The relevant principles for the proper approach to the construction of such policies were considered by Chow J in Law Mei Mei v Airport Authority [2018] 4 HKLRD 312 at §§50-54. Excluding references to previous authorities, I might restate those principles as follows:
304.The Assessment objectives of the C&A Guide are stated in Chapter 5 section 5.3 (see above). By reference to those parts of the section to which I have already drawn attention (including by way of emphasis, shown by italics) the objectives were specified as being closely aligned with the curriculum framework, and included:
305.Those passages seem to me to be in ordinary language, which is not difficult to understand. 306.Ms Po also relies on the passage that, in using role-play in teaching history, there is an understanding and contemplation that controversial and sensitive issues are bound to arise in teaching contemporary history. So, says Ms Po, though it may be controversial to put the proposition that “Japan did more good than harm to China in the period 1900-45”, such controversial and potentially sensitive issues are recognised in the C&A Guide as ones that are “bound to arise”. In that context, she points out that students are expected to acquire knowledge and understanding of diverse standpoints and perspectives, which may include confirmation, negation or qualification of the statement in question. 307.As regards using extracts from original sources, Ms Po submits there was nothing inappropriate in those used for the Question because the C&A Guide expressly contemplated in section 5.5.2 that various types of historical sources will be used, which “may include extracts from written sources, statistics, and visual materials such as maps, cartoons and photographs”. Indeed, the C&A Guide section 5.4.2 on ‘internal assessment practices’ identifies that (emphasis added):
308.Hence, Ms Po submits, the HKEAA has misinterpreted or misapplied the C&A Guide by requiring the two Sources in the Question to be covered by the curriculum and school teaching. Further, in section 5.5.3 on ‘public examinations’, provides that (emphasis added):
309.As to the suggested “imbalance” in language, Ms Po submits that the proposition posed in the Question sought to stimulate critical thinking in students and to discriminate those with superior critical prowess from the rest. Precisely because the Question “could lead candidates into making a superficial or one-sided interpretation and answer” is why it can be used to provide discrimination for better candidates from others. For it is the better candidates that would be able to understand diverse standpoints and perspectives, to analyse the reference materials and make use of their own knowledge, to present logical and coherent arguments in support of their views. 310.The suggestion that it was problematic to set the open-ended question against the historical backdrop of China in the first half of the 20th century being inappropriate in the context of a secondary school public examination is misplaced, says Ms Po. That part of the history is within the curriculum as Chapter 2 section 2.2.1 includes the modernisation and transformation of China as well as that of Japan, and the two world wars. 311.Mrs Hong (and the EDB) reason that it is inappropriate for the Question to have been set as an open-ended question because there has already been mainstream consensus on the related historical events, and measured against universally-accepted values there cannot be another conclusion. By way of example, Mrs Hong suggested it would not be appropriate for an Israeli public examination to ask candidates whether they agree that Nazi Germany brought more good than harm to Europe and Jews between 1930 and 1945. She said that, as there is already a settled view in history, there is actually no room for discussing their “good” as versus their “harm”, and it would be counter to the goal of education if a question is set to lead questions to argue for their “good”. Nor, said Mrs Hong, was such a question age- and ability-appropriate for Secondary 6 students. 312.In response, reference was made by the Applicant, in his 2nd affirmation, to the IGCSE question in 2013 – set for a similar age-group – which asked:
313.Though Mrs Hong has sought to answer that point in her 2nd affirmation, Ms Po submits that the IGCSE example goes directly against the EDB’s reasoning. The atrocities of Nazi Germany during the Holocaust are well-documented and abhorred in all civil societies. But that does not prevent the examination authority seeking to test students’ historical knowledge, and to assess their ability of critical analysis and discrimination by putting forward a controversial proposition. In any event, she submits that the proposition that the Question is beyond the ability of most candidates is not supported by any empirical evidence, not least because the Question was invalidated before it was marked and so no data as to actual performance has been obtained. 314.The argument on this Ground 4 was developed orally on behalf of the Applicant by Mr Tam. He referred me to the evidence as to what constituted the Decision, being both what is revealed by the minutes of the 2nd Council Meeting and the press release of 22 May 2020. Having again referred me to the C&A Guide at section 5.3, Mr Tam accepted that may not be a statutory policy, but that the HKEAA had referred to it both in the decision reflected by the minutes and in the press release. 315.I pressed Mr Tam on which precise parts of the C&A Guide are alleged to have been misinterpreted or misapplied. Mr Tam referred back to the parts that students are expected to be able to take diverse standpoints, and to argue cogently by reference to different pieces of information. Essentially, his submission was that because the HKEAA relied on the fact that 38% of the candidates had apparently expressed in their answers some agreement with the proposition in the Question, that shows the HKEAA departed from the objective of assessing diverse standpoints. 316.In his evidence, Dr So expresses disagreement with any assertion that the HKEAA had misinterpreted or otherwise misapplied the C&A Guide. Although the Question was targeted to assess certain skills referenced in the C&A Guide, it was considered by the Council to have deviated from the curriculum objectives.
317.I think there is possibly a degree of circularity in the last point; the Question is thought to be unfair and inappropriate at least in part because it is said that there could be no objective and fair marking scheme, but it is said there can be no objective and fair marking scheme because the Question is inappropriate. Also, I am not sure why a marking scheme cannot be identified which would give marks to students demonstrated the curriculum objectives of empathy and a sense of identification with the nation, and would not give marks to students who failed to demonstrate the curriculum objectives of empathy and a sense of identification with the nation. But Mr Dawes reminds me that I am not an academic expert. 318.Mr Dawes also submits that the criticism in the Applicant’s Ground 4 is misplaced, based on a non sequitur, and in any event without evidentiary support. He says, first, it is important to bear in mind that the Ordinance does not impose any statutory obligation on the HKEAA to have regard to any policy, rules or guidelines in the invalidation of examination questions. That is not a good point. If an examination question is invalidated on the basis that it does not meet the requirements of a policy, rule or guideline which the HKEAA has set and promulgated, then plainly the decision can be tested against that policy, rule or guideline to see whether it has been properly interpreted and applied. Therefore, I also disagree with Mr Dawes’ submission that the C&A Guide is not a policy governing invalidation of the Question. It may be right that the weight that the HKEAA places on the C&A Guide and the individual objectives contained in it are matters within the discretion and judgment of the HKEAA. But the HKEAA has justified its Decision to invalidate the Question by reference to the C&A Guide. If the HKEAA has placed weight on a particular point in the C&A Guide which it has misunderstood or misinterpreted, that is a potential ground of review. 319.Mr Dawes’ fall-back position is that even if the Question were compliant with some of the objectives in the C&A Guide, that could not in itself (his emphasis) call into question the proprietary of the Decision, which was based on a host of factors considered by the HKEAA. 320.Looking at the minutes of the two Council Meetings, Mr Dawes submits that the HKEAA Council members had properly considered the C&A Guide and took into account the stated objectives in reaching the Decision. He says there is simply no evidence of any misinterpretation or misapplication by the members. In particular, he relies on the following:
321.Mr Suen submits that, though put as a challenge of misinterpretation or misapplication of the C&A Guide, Ground 4 is in truth an attempt to ask the Court to assess the merits of the Decision and to substitute its own view over that of the HKEAA Council. He says this is apparent from the way in which the Applicant is seeking to re-argue substantively against each and every reason the Council has adopted. 322.I think there is force in that submission. In considering this Ground 4, it clearly gives rise to concerns that the Court is being asked to cross the line between an assessment of the decision-making process and an assessment of the merits of the Decision itself. I am conscious that my own reaction to some of the Applicant’s arguments is to have engaged in a debate on the merits of the Decision. Indeed, to be fair, Mr Suen himself has unsurprisingly slipped into certain aspects of argument which appear to go more to the merits than the process. 323.Perhaps it is on occasions a fine line. But I agree that it is necessary, first, to focus on the proper interpretation and possible application of the C&A Guide and, second, to see whether the HKEAA has instead misinterpreted the C&A Guide or applied it in a way which is impermissible. 324.For the EDB, Mr Suen emphasises the need to approach the C&A Guide in a holistic manner, as it requires. There should be no cherry-picking, or reading of individual provisions in isolation. He also emphasises the distinction to be drawn between pedagogy (teaching and learning, eg. in classes) and assessment (the practice of collecting evidence of student learning) – albeit he accepts the interplay between those components – and the further distinction between internal assessment and public assessment. Mr Dawes makes the same submission. 325.With those distinctions in mind, as well as the curriculum rationale of the History subject requiring holding onto some fundamental values and attitudes commonly held in our community and across other societies, Mr Suen submits there should be sensitivity to cultural and empathetic issues. He also relies on the recognition in the HSI Guidelines that some questions might cause strong emotional reactions among some candidates, to which they might respond emotionally and not be able to concentrate well in completing the examination, or through worried that they would be disadvantaged by presenting a particular view or stance. 326.So, Mr Suen says, discussion over sensitive issues in classes in the course of teaching is one thing, but question-setting on sensitive issues for a high-stake public examination like the HKDSE is quite another thing. 327.In any event, as Mr Dawes and Mr Suen submit, the minutes of the two Council Meetings identify that, after deliberation among Council members, it was agreed that the Question failed to align with the History curriculum aims and objectives, and also failed to comply with the HSI Guidelines. I also agree that whether any individual candidate, such as the Applicant, was or was not misled is not the point. Rather, the matter was whether the design of the Question objectively posed a real risk, which the HKEAA Council considered it did. 328.In the end, as I have indicated, the C&A Guide is straightforward, and uses language which is not difficult to understand. I do not think the evidence demonstrates that the HKEAA misinterpreted the C&A Guide. As to any alleged misapplication, that is really a ‘merits point’, not a ‘decision-making process point’. 329.Ground 4 must fail. R. Ground 5: Procedural Impropriety (Right to be Heard) 330.Ms Po submits that the Decision is tainted with procedural impropriety, in that the HKEAA gave no appropriate chance for candidates affected to make representations before the Decision was made. As the Question is a compulsory question in HP1, its invalidation directly affects all candidates who took that paper, including the Applicant. 331.So, says Ms Po, for a decision-maker to be unbiased, fair and to act in accordance with the rules of natural justice, he must give an appropriate chance to make representation to those affected before he makes the decision. Ms Po relies on Kioa v West (1985) 159 CLR 550. 332.Ms Po acknowledges the high number of candidates taking HP1 this year, but says the right to be heard could be safeguarded by simply inviting representations from candidates, to be made in writing within a certain period of time. Such representations might provide further insight into matters such as candidates’ ability, which would be relevant to making the decision whether or not to invalidate the Question. 333.As an example, Ms Po points to the EDB’s view that it is not a reasonable expectation for candidates to be able to deduce Source D as “harm” based on the provided information that has not included the most material part of the event, but the Applicant was able to see Source D might be an indicator of “harm”, even without further background provided. 334.As an aside, it might be noted that in one of Mr Dawes’ own footnotes to his written submissions, he specifically states that “it is clear that both of the incidents referred to in these Sources were ‘harm’ done to China”, whilst asserting that candidates who were unaware of the context may be misled into thinking otherwise. That seems to me to be an acknowledgement that some students will understand the nuance of the Sources, whilst others will not – so providing precisely the ability to discriminate between candidates that one would expect of an examination question. 335.It is also in this context that Ms Po makes the submission that the two methods chosen to impute scores for the Question, after its invalidation, are problematic and unfair to candidates. First, she says basing candidates’ performance on questions 2(a) and (b) fails to consider the difference in difficulty among the sub-questions, where the Question is more difficult than the other sub-questions. Secondly, she says basing candidates’ performance on questions 1(c), 3(c) and 4(c) is based on a false assumption that candidates’ knowledge on the historical topics of the four questions are the same. 336.I see some force in these points. Many, if not most, examination candidates do not have an equal knowledge on all topics as might arise in questions found on the examination. Sometimes, that is a result of a choice of where effort is made, or the result of personal interest or lack of interest in particular topics. Similarly, students may have varying abilities by reference to different types of question. A number of potentially problematic examples are easy to envisage. For example:
337.Of course, that is to look at the situation only vis-à-vis individual students. But there is also a possible knock-on effect on all other students when any one student is given an imputed score which is either better or worse than he would otherwise have achieved. This is because, as is identified by reference to the potential ramifications if the Decision is quashed, if the mark awarded for any one question is varied, that may affect the mark adjustment mechanism, and then the subject mark of each candidate and then the overall mark distribution of candidates. Differing marks awarded for the Question may require determination of a new set of cut scores and re-grading, so that the new grade may be lower or higher than the original grade. 338.In other words, potential unfairness may occur to many candidates whose overall grade may be affected by an unfair imputation of a particular mark to the Question, not just for himself but for other individual candidates. It might, therefore be expected that some candidates would have a view on the matter of invalidation of the Question, and the consequences to be put in place even if the Question is to be invalidated. As Mr Tam orally submitted on this ground, and I accept, the hurdle for a person to have sufficient interest that he may be adversely affected, so that he might seek a right to be heard, is perhaps low. 339.But, Dr So does not agree that candidates had a right to be heard in relation to the Decision. Whilst candidates’ views in relation to the HKDSE are valued, and collected through regular feedback, the Council comprises members representing the viewpoints and interests of local schools and parents, which helps ensure candidates’ interest and viewpoints are represented. Further, he says that affording candidates a “right to be heard” is impractical and unrealistic for various reasons including: invalidating an examination question involves professional expertise which candidates might not fully appreciate; the tight timetable; the impracticability of inviting representations from nearly 5,000 candidates; the diverse composition of the Council already provides safeguards; and the Council believed the mark adjustment mechanism could address candidates’ interests by minimising the impact on their marks due to invalidation of the Question. 340.In any event, Mr Dawes submits that a decision-maker is not under any general duty to consult the public or groups of persons likely to be adversely affected before it exercises its statutory power. Such a duty only arises if fairness requires it: see Yook Tong Electric Co Ltd v Commissioner for Transport (unreported, HCAL 94/2002, 7 February 2003, Hartmann J) at §§29-30, 38. Here, says Mr Dawes, fairness does not require consultation or representations, for a number of reasons:
341.Mr Dawes is correct as regards the absence from the Ordinance of any right of candidates to be consulted. But that may be irrelevant if fairness required it. As to the tight timetable, the relevant timing must be by reference to when the Decision was under consideration, not today’s date; six weeks have passed since 21 May 2020. I have already expressed some doubt about the reliability of inferences to be drawn from only a preliminary screening. But I accept that the HKEAA Council did have in mind the interests of candidates as a whole in its decision-making process. Indeed, from the minutes, it seems that ultimately the Decision was made to invalidate the Question because of concerns about overall fairness to candidates. 342.As I explored in argument with Mr Tam, and he accepted, there is a distinction between the interests of candidates as individuals, and the interests of candidates as a group or cohort. In that regard, I accept Mr Dawes’ submission that it is really to the latter type of interest that the HKEAA was to pay regard. As dealt with during argument, it is easy to imagine different individual candidates having fundamentally different views on whether the question should be invalidated, probably driven by whether the individual thinks he or she performed well or not in answering the Question. It is also potentially problematic for individual candidates to have any say about a question on an exam which they have just sat, and the results of which have not been finalised or published. 343.Dr So acknowledges in his evidence that some candidates might conceivably score a higher mark for the Question than the imputed mark under the mark adjustment mechanism. But that is based on an assumption that the Question is capable of being marked fairly, whereas the alternative view has been formed. Also, some candidates might feel that since they were misled by the Question in the first place, marking the Question would be even more unfair to them. Dr So says that, whilst there is not a perfect mark adjustment mechanism, the Council considered that the adopted mark adjustment mechanism would still be based on an assessment of the candidates’ knowledge of the relevant area and their skills engaged by the (c) parts of all four questions in HP1, and accordingly the impact on candidates’ marks would be minimised by adopting the higher of the two imputed marks. 344.Indeed, I suppose that whilst the chosen mechanism for imputing marks might cause some individual unfairness to some individual candidates, once the Decision has been taken to invalidate the Question, there will never be a perfect way of dealing with the consequences through the imputed marks to be awarded. My own view, for what it is worth, is that a cancelled question should attract no marks for anyone, though that is also not perfect. But, which is the best of the available and envisaged possibilities is ultimately a matter of academic judgment for the HKEAA. 345.There seems to me to be also one other point, namely that permitting individual candidates to express their individual views as to whether any particular question should or should not be invalidated seems difficult to reconcile with the almost certain impossibility of envisaging that students would be invited to express individual views before an examination as to whether any particular question should or should not be set in the examination. Again, that suggests to me that the relevant interests are the interests of the candidates who took the History examination, as a whole group or cohort. 346.As mentioned above, I had a concern as to whether or not the problems arising from dealing with invalidation ought to have been taken into account when deciding whether or not to invalidate the Question. If, for example, it were to be determined that ultimately no overall fair manner of imputing marks could be designed, that might impact on the decision whether or not the Question should be invalidated at all, or whether the potential problems seen in the Question would better be dealt with in some other way, such as through a marking scheme revised as best as circumstances might permit. 347.But, this is not an argument which was deployed on behalf of the Applicant, though it was explored in exchange between Ms Po and myself. This was one of the points for which Ms Po sought leave this morning, on the second day of the hearing and mid-way through Mr Dawes’ submissions, leave to re-amend the Form 86. That application was opposed by Mr Dawes and Mr Suen, as being a point raised too late and appoint in any event without merit. 348.Having revisited the minutes of the Council Meetings, as well as the materials provided in advance of them and tabled at the meetings, I do not think there is any merit in the point. There was in fact consideration of the potential way in dealing with marking if the question was invalidated, before the actual Decision was made. I also note that there was consideration of potential other methods of dealing with the perceived problem. I disallow this proposed re-amendment. In any event, on the evidence, I am not persuaded that it gives rise to a proper basis for review so as to interfere in the Decision, so I also see no prejudice to the Applicant in that course. 349.Ground 5 must fail. S. Ground 6: Wednesbury Unreasonableness 350.As formulated by Ms Po this asserted ground of Wednesbury unreasonableness is based on a combination or accumulation of the reasons already set out in the other Grounds. As she identifies, Wednesbury unreasonableness is sometimes friend in the language of decisions that are “arbitrary and capricious” or “capricious and vexatious”. Here, says Ms Po, the reasons already identified demonstrate that the Decision was arbitrary and capricious and thus Wednesbury unreasonable. 351.Mr Dawes submits that the Applicant falls far short of meeting the Wednesbury threshold. He relies on the principle that decisions involving academic or professional judgment will not be interfered with by the Court unless they are Wednesbury unreasonable, and that the Wednesbury test is to be applied with a low intensity of review where the courts are not equipped with the requisite expertise or knowledge to decide the issues before it: see Kennedy v Information Commissioner [2014] UKSC 20 at §§53-54. 352.In this case, Mr Dawes submits, the Decision clearly involves matters of professional and academic judgment, such as whether the Question meets the objectives of the C&A Guide and whether it is possible to devise a fair and appropriate marking scheme. On those points, I have ventured to express some views, in part because of a possible argument that if the decision looks very ‘shaky’, that might raise awareness of the need to give anxious scrutiny to the process by which it was reached. But, not wishing to be jejune, I must recognise that the Court is not best placed to make conclusions on matters where professional and academic judgment comes into play. On the other hand, the HKEAA is specifically constituted to provide appropriate professional and academic advice and assessment, which the HKEAA has been able to deploy and consider. 353.Mr Suen takes the same stance. He says the EDB put forward to the HKEAA Council that the Question was defective from a professional point of view and should be invalidated from the education and assessment perspectives. He says the EDB came to such a view after internal discussion, research, and consultation with outside experts and frontline/retired teachers. The members of the Council took time to consider, discuss and deliberate among themselves, in two Council Meetings. They took into account various and differing views, and also experts’ views on the matter. The final conclusion was reached that the Question was problematic and should be invalidated without proceeding with marking. Mr Suen submits that even if there might be contrary views, it is not the function of this Court to assess and adjudicate which side of the views of the academic experts is more sound. 354.Put another way, it is not the function of the Court to substitute its own view in place of that expressed by the decision-maker. I accept Mr Dawes’ and Mr Suen’s submission that it would be wrong for the Court to usurp the power and discretion specifically conferred on the HKEAA by the Ordinance. There is no Wednesbury unreasonableness. 355.Ground 6 must fail. T. Exercise of Discretion 356.Remedies in judicial review are discretionary. Even if an Applicant can demonstrate that a public authority has acted unlawfully, the Court may nevertheless refuse a remedy in the exercise of its discretion. Remedies may be denied so as to avoid wide implications or unacceptable adverse impact on third parties, where there is a lack of prejudice to the claimant, or where the court can be certain that the decision-maker would not have reached a different conclusion even if the original decision was quashed. 357.Dr So highlighted in his evidence the potential significant ramifications if the Decision is quashed by this Court. As he points out, that would mean the Question would not have been invalidated and so should be marked. However, the Council has already concluded the marking of the Question could not proceed due to the impossibility to produce an objective and fair marking scheme, making the feasibility of marking the Question highly doubtful. 358.In any event, marking the Question will likely disturb and delay the HKDSE timetable. The marking and grading process requires a holistic assessment of the candidates’ performance for the entire subject, so the process would involve more than simply marking the Question. Various key steps in the marking and grading process would need to be retaken. The HKEAA estimates that it would take at least 9 calendar days to re-mobilise sufficient markers to complete the re-marking process, 2 calendar days after the marking to complete the post-marking process, 4 calendar days to complete the re-grading process, and another 4 or 5 calendar days to generate and check results packs and print results notices. Therefore, it would take a total of at least 19 to 20 calendar days to remarket, regrade, process, seek approval of PEB and release results for the whole History paper (comprising both parts) for the 4,958 candidates who sat for the examination. 359.Dr So also refers to the uncertainties which would be faced by candidates who wish to rely on their HKDSE History results to apply for a place in universities or higher-education institutes locally or overseas. The potential likely delay may also be prejudicial. For example, the UCAS system for UK universities has a deadline for submitting examination results on or before 31 August 2020. 360.Mr Dawes also points out that the Form 86 does not specify any prejudice suffered by the Applicant as a result of the errors of which he complains. In any event, Mr Dawes says the mark adjustment mechanism adopted sufficiently addresses any prejudice which may be caused. The problem with that submission is that it is simply not possible to know what prejudice has or has not been caused, because the Question has not been marked and so the difference between marking and invalidation cannot be measured. Further, I see at least the argument that some prejudice is suffered by candidates simply from sitting an examination with the Question on which the Applicant considers he probably performed well, but which has now been invalidated and replaced by a marking system with inherent imperfections. 361.Nevertheless, I am persuaded that quashing the Decision would impose such heavy administrative burdens on the HKEAA, and would itself also risk causing other real prejudice generally to examination candidates by the potential delay and impact on university and employment applications, that in the exercise of my discretion I would not grant the remedy of quashing the Decision. U. Conclusion / Result 362.In the light of the fact that this is a ‘rolled up’ hearing, it is now academic as to whether or not I would have granted leave on the Form 86, or its amendments. But, because of the impression left by the publicly available materials rehearsed in the Form 86, I think it likely that I would have granted leave on some of the proposed grounds of review. 363.However, I have also formed the view on the substantive hearing that none of those grounds have merit as would justify the interference by the Court with the Decision. Further, even had any grounds for review been established, in the exercise of my discretion I would not have interfered with the Decision. 364.I have made more comments than might be made in some other cases on the underlying merits of the decision and the arguments deployed by some people before it was taken, because the circumstances warranted it. In addition to the points I have already made, part of the reason to do so was because it can be recognized that there are differing views that might legitimately be expressed on these matters. Both Mr Dawes and Mr Suen have fairly accepted that differing views can exist. But, as they say and I accept, there are many matters that were under consideration by the HKEAA Council members that are matters of academic judgment, and there were many layers to the consideration. Whilst it may be possible to look at some individual points in isolation, and pass comment on them, they did not exist in isolation and they did not fall to be considered in isolation. Ultimately, it was for the HKEAA and not for the Court to make those decisions, and I have not found any procedural irregularity or other unfairness in the decision-making process. 365.I also do not accept that the HKEAA was in any way motivated by any concerns as the teaching of History in Hong Kong, rather than its assessment. The simple fact is that 20th-century Chinese history is on the relevant curriculum, and that history necessarily involves Sino-Japanese relations over the period 1900 to 1945, however sensitive or emotive some people might find them. 366.To my mind, there is a big difference between (a) invalidating an examination question on the basis that it is not a very good question, and is not fit for purpose because it is unfair and fails to permit the appropriate discrimination between candidates, and (b) invalidating an examination question on the basis that some candidates answering the question might express views that the majority of people would find incorrect, even abhorrent. From many of the public utterances made by senior government officials, it is perhaps no surprise that many people think that the Government motivation in this matter was to seek to clamp down on the possibility that anyone might express the view, or be taught with an expression of view, contrary to a chosen ‘party line’. Nor, in those circumstances, is it a surprise that some people might think that the HKEAA was in effect bullied by the Government into making the Decision to invalidate the Question for political reasons. 367.But, with the benefit of the internal deliberations of the HKEAA Council, there is no evidence from which I could properly draw such a conclusion. Rather, the evidence points to careful, almost exhaustive, deliberations amongst professionals, and the expression of and consideration of numerous differing views from different perspectives. Each member of the Council brought to the discussion his or her own experience and expertise, for which purpose he or she had been made a member of the Council. The Council took soundings and opinions from those experts it thought might assist in the deliberations. There is nothing inherently wrong in a strong expression of any one member’s views. There is nothing inherently wrong in any member changing his mind from an initial view. At the end of the lengthy deliberations in this case, by a process chosen to fit a new occurrence (and which process cannot be considered unfair), the Decision was made by majority vote of the members collectively charged by the Ordinance with making such decisions. 368.The high hurdle necessarily set for the Applicant by the basis and grounds of review put forward is simply not cleared. 369.The Applicant’s application is dismissed on all grounds. V. Costs 370.I have not heard any submissions as regards costs. But, as between the Applicant and the HKEAA, I currently see no reason why cost should not follow the event. As for the position of the EDB, I currently consider that the appropriate costs order should be that there be no order as to costs between the Applicant and the EDB. 371.I make these costs orders on a nisi basis. They will become absolute, unless any party applies for any variation within 14 days. Any such application should be made in writing, and I am likely to deal with a variation application on the papers.
Ms Wing Kay Po, Mr Jeffrey Tam and Mr Albert Wan, instructed by Ho Tse Wai & Partners, for the Applicant Mr Victor Dawes SC and Ms Sara Tong, instructed by Hogan Lovells, for the HKEAA (putative respondent) Mr Jenkin Suen SC and Mr Johnny Ma, instructed by the Department of Justice, for the Education Bureau (putative interested party) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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