LOH MING YIN v HONG KONG EXAMINATIONS

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

________________________

________________________

________________

____________________

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:

(1) the Applicant’s affirmation dated 3 June 2020, which verified the factual contents of the Form 86, and exhibited copies of the various documents referred to in it;

(2) the HKEAA’s evidence contained in the affidavit dated 18 June 2020 of So Kwok Sang, the Secretary-General of the HKEAA, and its exhibits;

(3) the EDB’s evidence contained in the affirmation dated 19 June 2020 of Chan Tsui Wah, the Deputy Secretary for Education (5) of the EDB, and its exhibits;

(4) the Applicant’s 2^nd affirmation dated 22 June 2020, in reply; and

(5) the 2^nd affirmation of Chan Tsui Wah, seeking to respond to one point raised by the Applicant in his reply affirmation, and for which I have granted leave.

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:

We cannot put ourselves in the position of examiners in order to re-mark work or pass comment on the marks given. However, we can look at whether the university has correctly followed its own assessment, marking and moderation procedures, and whether there was any unfairness … in the decision-making process.

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:

(1) The HKEAA by-passed established post-examination review procedure and invalidated the Question at the unlawful prompting of the EDB, the Secretary and/or the CE.

(2) The HKEAA took into account irrelevant considerations.

(3) The HKEAA failed to have regard to relevant considerations, including the right to the importance of preservation of academic freedom.

(4) The HKEAA misinterpreted and/or misapplied the History Curriculum and Assessment Guide.

(5) There was procedural impropriety in that the HKEAA failed to give an appropriate chance to the affected candidates of any right to be heard before the Decision was made.

(6) The Decision was Wednesbury unreasonable.

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:

Paper	Part	Weighting	Duration
Paper 1	Paper 1 will consist of data-based questions.  Candidates should attempt all questions. 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.	60%	2 hours
Paper 2	Paper 2 will consist of seven essay-type questions, of which candidates may attempt any TWO.	40%	1½ hours

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 20^th century’.

30.  In the English version, question 2 begins with two source passages set out as follows:

SOURCE C

The following is adapted from an article by Ume Knejiro, head of Japan’s Hosei University (University of Law and Politics), published in 1905.

Last year, Fan Yuanlian from Qing China requested to see me and said, ‘China will carry out reforms.  So far, students sent to Japan mostly study military science and education, but rarely study law and politics, which, however, are essential subjects to study if China is to reform itself.  In view of China’s current needs, it is almost impossible for students to spend more than six or seven years on such subjects.  I now feel that we must set up an accelerated school for law and politics, preferably offering a one-year course, which summer holiday to be cancelled.’  Regardless of how urgent it is, an accelerated course usually takes three to four years to complete.  But considering Fan’s enthusiasm, our university provisionally decided to try out a one-year course. Foreign Minister Komura has agreed to this.  Ambassador Yang of Qing China has earnestly expressed his consent, and planned to appeal to provincial Governors-General and submit memorials to the Qing Emperor for sending students over to study.

SOURCE D

Extract A is adapted from a letter from Husang Xing to Inoue Kaoru, a Japanese politician, in January 1912.

Extract B is adapted from a contract signed in February 1912 between the Provisional Government of the Republic of China and zaibatsu Mitsui, which was closely linked to Inoue Kaoru.

Extract A Now, China’s southeastern part has largely settled down, with cities of fourteen provinces flying the revolutionary army’s new flay, and people are happy.  The Qing government is heartless, burning and killing everywhere, so that people earnestly wish to see the arrival of our army.  In their petitions, people in provinces such as Zhili and Shandong all consider it regrettable that our army has so far failed to launch a northern expedition.  Yet, considering the fact that Yuan Shikai of the Qing government may be remorseful about his wrongdoings, we have agreed, for the time being, to have a truce of up to one month to see how peace negotiations may go.  We have recently formed a new government of the Republic of China, and plan to notify various nations.  If eventually a peace agreement cannot be reached, we have no choice but to settle matters by resorting to war.  At this time when the new government has been set up, I earnestly request that you offer us financial help.  In addition, I also hope that you can voice your support with regard to our government’s effort to raise funds through the Mitsui Company of your country. Extract B Mitsui Company will act for the Hanyeping Company to raise 2.5 million yen as a loan to the Republican Government. … 2.     The Daye Iron Mine will act as a collateral for the loan.  All fees involved in foreign currency remittance* are to be determined by the Mitsui Company. 3.     The above loan is good for one year; annual interest rate is 7%, payable every half year.

* remittance: money that is sent to transfer to another party at a distance

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):

(a) Conclude from Source C one problem that might have hindered modernisation efforts in China. Explain your answer with reference to source C.  (3 marks)

(b) How successful were the revolutionaries in overthrowing the Qing government by January 1912? Explain your answer with reference to Source D.  (4 marks)

32.  The Question – ie. Question 2(c) – was as follows:

(c) ‘Japan did more good than harm to China in the period 1900-45.’  Do you agree? Explain your answer with reference to Sources C and D and using your own knowledge.  (8 marks)

33.  The Chinese version of the Question has the same content, including the Sources.  The Question in the Chinese version reads:

(c)「1900-45年間，日本為中國帶來的利多於弊。」你是否同意此說？試參考資料C及D，並就你所知，解釋你的答案。

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 20^th 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:

2020 年香港中學文憑考試(文憑試)歷史科試卷一題二涵蓋課程內主題甲「中國早期的現代化努力」及「日本在二十世紀初的現代化」兩個課題。題 a 及 b 按題目要求適當運用資料作答即可得分。題 c 所考核的是《課程及評估指引》第一章 1.4「課程目標」所列「恰當地選用及組織史料，以提出合乎邏輯和前後一致的論點」的能力。考生作答時，需使用相關資料及相關時期內的史事作答。資料是評核工具的一部分，設題時主要看資料是否與課題相關，別無其他非學科的考慮。

與其他文憑試科目一樣，歷史科設有「審題委員會」，依據該科《課程及評估指引》與《評核大綱》，負責有關試題及評卷指引的制訂工作，包括確保試卷的涵蓋範圍、水平和用詞都能適當地與課程和評核目標一致；委員會亦確保評卷指引能讓閱卷員易於遵循，並提供合理空間讓他們閱卷時運用其專業判斷。此外，在擬題的不同階段，我們設有既定機制檢查和校對試卷內容，以確保試題水平恰當。

「審題委員會」成員包括試卷主席、擬題員、審題員及本局評核發展經理。委員的背景有大學教授、具豐富教學經驗的中學教師及/或校長、課程及學科專家等。「審題委員會」成員不論個人背景與信念，均須依從考評局的既定機制，專業地按課程及評核的要求擬題，確保

試卷能有效公平地評核考生。有關擬題機制的詳情，可參閱《香港中學文憑考試 - 質素保證框架 》(附錄 A)：www.hkeaa.edu.hk/DocLibrary/Media/Leaflets/HKDSE_QA_A4booklet_Aug2016.pdf ...

50.  Translated into English, the press release stated:

The HKDSE 2020 (DSE) History examination paper 1 question 2 has covered the two topics of theme A of the curriculum, namely, “The effort of China in its early modernization” and “The modernization of Japan in the early 20^th century”.  Regarding questions a and b, answering the questions according to the requirement by applying the data appropriately can score marks.  Question c is testing the ability to “present logical and coherent arguments through proper selection and organization of historical data” listed in 1.4 Curriculum Objectives of Chapter 1 of the “Curriculum and Assessment Guide”.  Candidates have to use the relevant data and the historical events in the relevant period to answer the questions.  The data is a part of the means of assessment.  When designing the questions, the focus is to see whether the data is relevant to the theme, without any other non-subject-related considerations.

Like other subjects, a Moderation Committee has been established for History to be responsible for the development of the relevant examination questions and marking guide in alignment with the “Curriculum and Assessment Guide” and the “Assessment Framework” of that subject.  The Moderation Committee will ensure the examination papers is consistent with the curriculum aims and assessment objectives and is appropriate in terms of coverage, standard and wording.  The Moderation Committee will also ensure the marking guide is easy to follow and allow reasonable room for markers to exercise their professional judgment.  Furthermore, mechanisms for checking and proofreading of the examination paper contents are applied throughout the various stages of examination paper development, with the aim of ensuring that the questions are workable.

The Moderation Committee comprises the Chief Examiner, setters, moderators and the subject manager from the HKEAA.  The members include professors from universities, experienced secondary school teachers/principals and subject & curriculum experts.  Members of the Moderation Committee, regardless of their personal backgrounds and beliefs, have to set examination questions professionally based on the curriculum and assessment requirements according to the established mechanisms of the HKEAA, so as to ensure that candidates are assessed by the examination papers in an effective and fair manner.  Please refer to the“HKDSE Quality Assurance Framework” (Appendix A) at www.hkeaa.edu.hk/DocLibrary/Media/Leaflets/HKDSE_QA_A4booklet_Aug2016,pdf for more details.

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):

The EDB noted that one-sided information has been attached to the question of History Paper 1 of this year’s HKDSE Examination.  The question is a leading one, which may lead candidates to reach a biased conclusion, seriously hurting the feelings and dignity of the Chinese people who suffered great pain during the Japanese invasion of China.  The EDB deeply regrets and condemns the design of such a question in a public examination.

The EDB demands the Hong Kong Examinations and Assessment Authority to seriously follow up the matter and provide reasonable explanations to the public.  It is also required to review the question-setting mechanism comprehensively to make prompt improvements with a view to maintaining the fairness, impartiality and credibility of the HKDSE Examination.

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:

The Hong Kong Examinations and Assessment Authority (HKEAA) attaches much importance to the views expressed by the Education Bureau (EDB) and the public on the History Examination Paper in this year’s HKDSE, and expresses deep regret over the view that the question might seriously hurt the feelings and dignity of those who suffered great pain during the Japanese invasion of China. As the examination has just been held and its marking has not yet begun, it is not the right time to make comments as this may undermine the fairness of marking and jeopardize candidates’ interests.

As an independent statutory organisation, the HKEAA strives to manage and conduct public examinations in an open, fair, honest and accountable way. As in the past, we will ensure a fair and accurate assessment of candidates’ performance in the examination.

The HKEAA reiterates that like other subjects, a Moderation Committee comprising university professors, well-experienced secondary school teachers and /or principals, curriculum and subject specialists, etc. is responsible for setting questions and drafting marking guidelines for the subject History. Questions and marking guidelines are set in accordance with the Curriculum and Assessment Guide and Assessment Framework. The finalised versions have to be unanimously agreed by the Moderation Committee after thorough discussions.

The HKEAA places a high premium on the professional views of the education sector. After the examination each year, different forms of review on the examination are conducted for all HKDSE subjects including History, such as school surveys, external vetting of examination papers and scripts, Examination Paper Quality Audit and a post-examination review by the Subject Committee.

The Subject Committee comprises subject teachers, university professors and curriculum experts of the EDB. The review will look at whether the examination papers and the marking guidelines are in line with the curriculum and assessment objectives; standard of the questions; the balance between the assessment of basic knowledge/skills and high-order abilities; the wording in the examination papers; the clarity and appropriateness of marking guidelines, etc. The outcome of the review will be forwarded to the Moderation Committee responsible for the following year’s examination to ensure the quality of the examination papers and for continuous improvement.

For details of question setting mechanism and quality assurance of the HKDSE, please refer to the HKDSE Quality Assurance Framework Booklet:

www.hkeaa.edu.hk/DocLibrary/Media/Leaflets/HKDSE_QA_A4booklet_Aug2016.pdf

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:

跟各地政府一樣，教育部門有責任頒布及貫徹執行「課程及評估指引」，以確保教育的質素。就「課程及評估指引」，顧名思義，「課程」及「評估」同樣重要，兩者要相輔相成，才能達到為我們下一代提供優質教育的目標。歷史科（中四至中六）課程及評估指引列明多項宗旨，包括讓學生能以公正持平、設身處地的態度，從不同角度去審視過去與當代事件；了解本身所屬文化的特質和價值；以及培養國民意識及全球公民意識等。因此，當執行課程及評估的過程中出現問題時，尤其是涉及教育及考評等機構，教育局有責任維護教育專業，並基於保障學生及公眾利益而採取相應行動，予以糾正。

就昨日文憑試歷史科（卷一）其中一條必答題的設計，由於題目所選取的兩份資料信息相近，都是偏向一方，顯示日本在20世紀初對中國的援助，以致試題具引導性，當學生被要求援引相關資料去評論「利多於弊」時，極可能達至偏頗的結論，偏離全面而客觀的歷史事實，不能反映學生應有的知識表現，亦可能得不到一個公平的評核。眾所周知，日本當年發動對華侵略，抗日戰爭造成數以千萬計的同胞喪生，公開試的試題出現如此令人感覺偏頗的設計，不但與上述課程宗旨不吻合，更會嚴重傷害在日本侵華戰爭中受到莫大苦難的國民的感情和尊嚴，我們對此深感遺憾。

61.  In translation, those remarks were:

Just like governments in other countries, the education department has the duty to promulgate and thoroughly implement the Curriculum and Assessment Guide in order to ensure the quality of education.   The name of the Curriculum and Assessment Guide speaks for itself, both the curriculum and assessment are equally important and these two aspects have to work side by side in order to achieve our goal of giving quality education to our next generation.  The History Curriculum & Assessment Guide (Secondary 4 - 6) sets out a number of aims, which include enabling students to approach past and current events in an impartial and empathetic manner, using a variety of perspectives; understanding the characteristics and values of their own culture; and cultivating both national consciousness and the consciousness of being citizens of the global community. Therefore, when there are problems in the implementation of the curriculum and assessment, especially those involving educational and examination and assessment organizations, the Education Bureau has the responsibility to safeguard the education profession and take corresponding rectifying actions in the interests of students and the public.

Regarding the design of a compulsory question in History (paper 1) of the DSE held yesterday, since the messages of the two chosen sets of source are both biased towards one side by showing the assistance offered to China by from Japan in the early 20^th century, the question is therefore made a leading one.  When students are required to cite from the source in giving opinions to “more benefits than harm”, it is very likely that they will come to a biased conclusion which deviates from the comprehensive and objective historical fact.  It will be unable to reflect the knowledge and performance of the students, and it is also impossible for them to be fairly assessed.  It is a 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.  When such a biasedly designed examination question appears in a public examination, it does not fit the aforesaid curriculum aims, and it also seriously hurts the feelings and dignity of the Chinese people who suffered greatly during the Japanese invasion of China.     We are deeply regretful for that.

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:

The Government is gravely concerned about the public concerns regarding the HKDSE (Hong Kong Diploma of Secondary Education) History Examination question on the history of China and Japan in the first half of the 20th century. In response to the incident, the EDB (Education Bureau) will take the following actions:

(1) Next Monday, the EDB will assign a team of colleagues who are familiar with the curriculum and quality assessment to visit the HKEAA (Hong Kong Examinations and Assessment Authority) to investigate the question setting, vetting and approval mechanism under the HKDSE and whether the mechanism has been strictly complied with during the preparation of the examination paper of the History Examination.

(2) We will request the HKEAA to invalidate the examination question concerned and make appropriate adjustments to ensure the credibility and effectiveness of the History Examination.

(3) Although the HKEAA is empowered to plan and conduct the HKDSE, in view of the recent incident, which has aroused public concerns, the EDB will review the existing mechanism and fulfil its role of monitoring the conduct of the HKDSE to ensure the quality of the Examination and the examination papers.

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:

(1) The question deviates from objective facts.  Given Japan’s invasion of China, the only answer to the question was that Japan only did harm but no good.  There is no room for discussion.

(2) The reference materials of the Question were “one-sided” and only focused on Japan’s assistance to China.  The Question is therefore considered “leading” and it was highly possible that students would come to a “biased conclusion” when citing the provided reference materials.

(3) The Question “deviated from comprehensive and objective historical fact.  It could not reflect students’ knowledge and [students] may not get a fair assessment”.

(4) The Question sparked huge controversy and the most effective solution was to invalidate the question.  However, the EDB is only requesting the invalidation of the question.  The EDB will decide whether to take further action depending on how the HKEAA following up with the request by the EDB.

(5) Although the HKEAA is an independent statutory body, it is a part of the Hong Kong education system.  The EDB has a duty to monitor the HKEAA.

(6) The HKEAA has its mechanism to ensure the standard of questions.  However, the quality of this question set by the HKEAA is plain and obvious.  It is necessary for EDB to follow up.  Otherwise, it would be unfair to candidates.

(7) Question setting is an internal matter of the HKEAA.  However, this question sparked huge controversy in society.  The HKEAA has a duty to explain to the public its question setting mechanism.

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:

香港考試及評核局(考評局)歡迎任何有助優化考評機制的專業意見與建議，對於教育局將派員了解香港中學文憑考試(文憑試)的擬題機制，以及計劃整體檢討現行考評機制，考評局會盡量配合，以持續優化及改進。

至於教育局要求取消歷史科的有關試題，這將影響考生的成績以及公開考試的評核，事關重大，影響深遠, 考評局委員會將盡快召開特別會議，商討如何跟進， 以確保所有考生的學業得到公平及準確的評核，並維護文憑試的公平公正及認受性。

72.  In translation, it stated:

The HKEAA welcome all professional opinions and suggestions which help improve the examination and assessment mechanism.  As the Education Bureau will assign officers to visit the HKEAA to investigate the question-setting mechanism under the HKDSE and to review the existing examination and assessment mechanism comprehensively, the HKEAA would do our utmost to cooperate with them in order to continue to evolve and improve.

Regarding the request of EDB to invalidate the examination question concerned, it will affect the results of the candidates and the assessment of the public examination.  Since it would have significant and far-reaching bearing, the HKEAA Council would convene a special meeting as soon as possible to discuss how to follow up the matters in order to ensure the performance of all the candidates can be fairly and accurately assessed, and to maintain the fairness, impartiality and credibility of DSE.

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:

The incident this time concerns a professional error. It is not, as some have suggested, an incident involving politics overshadowing education. Until this moment, I had not intervened. I didn’t [tell] the examination authority what they should do.  I didn’t invoke the power granted to the chief executive under the Hong Kong Examinations and Assessment Authority Ordinance to take action.  But I won’t evade the issue if I need to safeguard the quality and aims of education, as well as to protect students one day.

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:

I understand that students who have studied hard do not want new problems to crop up unexpectedly, but we have to ask ourselves, who has multiplied the problems?  Who made this exam question inappropriate and triggered controversies?

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:

...After considering the professional views on examination and assessment, the curriculum, and the interests of candidates, the Council came to the view that the design of the question deviated from the learning and assessment objectives as set out in the Curriculum and Assessment Guide (Secondary 4 to 6) of the History subject.  The reference materials provided in the question are merely excerpts from the original sources, and the language used in the question is imbalanced.  These could lead candidates into making a superficial or one-sided interpretation and answer within the limited examination time given.

While the question is designed as an open-ended question, setting it against the historical backdrop of China in the first half of the twentieth century is not appropriate in the context of a secondary school public examination.  The question does not meet the principle of the HKDSE of ensuring a fair assessment and the need to observe the question-setting principles in relation to sensitive subject matters.

After due deliberation, the HKEAA Council has decided to invalidate Question 2(c) of History Paper 1. In light of the paramount interests of candidates, the HKEAA will adopt the following mark adjustment mechanism, in which two methods will be used to impute two scores associated with the invalidated question:

1. One score is imputed based on candidates’ performance in Questions 2(a) and (b) of Paper 1, on the basis that these two other questions also assess the candidates’ knowledge of the same historical topic as in Question 2(c).

2. A second score is imputed based on candidates’ performance in Questions 1(c), 3(c) and 4(c) of Paper 1, on the basis that these three other questions also assess the same abilities as in Question 2(c).

In the best interests of the candidates, they will receive the higher of the two imputed scores as the final adjusted score for Question 2(c). This mechanism caters for both the targeted knowledge and the targeted abilities to be assessed in the examination, and the mark adjustment will be based on the candidates’ performance in these two aspects, whichever is stronger. The HKEAA Council has also decided that the examination question concerned will be deleted from the question database and will not be used as a reference for future question setting. The HKEAA will strengthen its attention to the alignment between assessment, curriculum and teaching in its question setting process.

Notes to Editors: Should there be any discrepancy between the Chinese and English versions of the press release, the Chinese version shall prevail.

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:

取消題目（答對了也不計分）非同小可，令筆者想起80年代中學會考多項選擇題（MC）試卷有個別題目在考試後予以取消的處理。由於無法試前進行預試（Pretest），未能知道各題目的表現特徵包括區分度（Discrimination index），假如有預試，區分度過低的便不會用於真正的考卷，一道人人答對的題目，區分度是零，完全失去甄別考生的能力，等於一條廢題。需要考試後進行題目分析（Item analysis），掌握有關資料，然後把少量有欠理想的試題交學科專家詳細審視，假如專家認同統計資料，才呈交高層批准然後取消有關試題，從而提高整個卷的信度（Reliability）。在試後出版的過往試題小冊子，被取消的題目均有註明供未來考生參考。明白到取消試題一定引起考生的不滿甚至投訴，考試局（當時未改名）做了不少解釋工作，最終獲得學校和考生的理解。

簡單來說，取消題目是公開考試的一個嚴肅項目，必須經過一個過程，以科學為基礎，輔以學科專家專業意見。偏離正軌，放下專業，後果嚴重。

81.  In translation, that is:

Invalidating a question is a serious matter [no marks would be scored even the answer to the question is correct].  It reminds me of the scenario when certain questions of the HKCEE multiple choice [MC] examination paper were invalidated after the examination.  As it was not possible to have a Pretest, we could not know the performance characteristics of each of the question including the Discrimination index.  If there was a pretest, questions having too low Discrimination index would not be used in the real examination.  A question which everyone can answer correctly has a zero Discrimination index which is actually a useless question as it is totally unable to differentiate the abilities of the candidates.  There is a need to conduct Item analysis after the examination in order to obtain relevant information, then a small quantity of unsatisfactory questions should be given to scientific experts for detailed analysis.  If the experts agree with the statistics, the relevant questions will be invalidated with the approval of the top echelon.  This is how the Reliability of the whole examination paper can be increased.  In the past paper booklets published after the examination, those invalidated questions have all been marked as for the reference of future candidates.  Realizing that invalidating questions would definitely lead to discontent and even complaints from the candidates, the Examinations Authority (as it then was) had done a lot of explanation which was finally understood by the schools and candidates.

In short, invalidating a question is a serious matter in public exams, it must go through a science-based process that is aided by the views of experts on the subject.  The consequences of deviating from the right path and laying down one’s profession are dire.

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:

As candidates were required to use their own knowledge to answer the question, they were also expected to be able to mention the mass casualties caused during Japan’s occupation of China between the 1930s and 1940s.  …  But according to our initial screening of answers, it seemed that the question’s original intentions had not [been met].

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:

‘Most people in Germany benefited from Nazi rule.’ How far do you agree with this statement? Explain your answer.

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:

‘By 1900 the British ruled India for their own benefit.’ How far do you agree with this statement? Explain your answer.

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:

 (1) the Chairman of the CDC appointed by the CE, or his representative;

 (2) the Executive Director of the Vocational Training Council, or his representative;

 (3) the Permanent Secretary for Education, or his representative;

 (4) the Secretary General of the HKEAA, who shall also be the chief executive of the HKEAA;

 (5) 2 persons nominated by the Heads of Universities Committee;

 (6) the following persons who shall be appointed by the CE:

(a) 3 persons who are principles of registered schools providing secondary education within the meaning of the Education Ordinance Cap 279 (“EO”);

(b) 1 person who is a principal of a rigid to the school providing primary education within the meaning of the EO;

(c) 1 person who is a registered teacher in a registered school providing secondary education within the meaning of the EO;

(d) 2 persons experienced in commerce, industry or a profession in Hong Kong;

(e) 1 person who is able, in the opinion of the CE, to represent the interests of parents of pupils in Hong Kong; and

 (7) such other persons, not exceeding 3, as the CE may appoint.

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):

(1) Subject to section 13, the Authority shall have powers to do all such things as are necessary or advantageous and proper in planning and conducting (whether on its own, or jointly with or as agent for other persons and organizations) examinations and assessments in Hong Kong or elsewhere.

(1A) Without limiting the generality of subsection (1), the Authority shall for the purposes referred to in that subsection—

(a) conduct the specified examinations;

(b) determine the educational requirements necessary for candidates to be eligible to sit specified examinations;

(c) make rules to regulate the conduct of candidates sitting specified examinations and the exclusion of candidates from sitting specified examinations for breach of any such rule;

(d) approve syllabuses for specified examinations;

(e) award certificates to candidates who attain a standard determined by the Authority in specified examinations.

(2) Without limiting the generality of subsection (1), the Authority may for the purposes referred to in that subsection—

(a) appoint such committees as it thinks fit;

…

(c) conduct any examination or assessment or any category of examinations or assessments, other than specified examinations, as the Chief Executive may approve and make rules to regulate the conduct of candidates taking those examinations or assessments and the exclusion of candidates for breach of any such rule;

(ca) award certificates to candidates who attain a standard determined by the Authority in any examinations or assessments conducted under paragraph (c);

…

(e) appoint, on such terms and conditions of service as it thinks fit, the Secretary General of the Authority and such staff, advisers and consultants as the Authority considers necessary;

…

(n) delegate—

(i) to any member of the Authority;

(ii) to any committee of the Authority;

(iii) to any member of the staff of the Authority, to the extent provided in the resolution of delegation, any of the powers conferred by this subsection, other than paragraph (b).

(3) …

101.  Under the heading ‘Power of the Chief Executive to give directions’, section 13 provides (emphasis added, shown by use of italics):

(1) The Chief Executive may give the Authority directions of a general character as to the discharge by the Authority of its functions in relation to matters appearing to the Chief Executive to affect the public interest.

(2) The Authority shall, in the exercise or performance of any power or duty under this Ordinance, comply with any directions given by the Chief Executive under subsection (1).

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:

(1) Except as may be appropriate for the exercise or performance of any duty or function under this Ordinance or for carrying into effect the provisions of this Ordinance, every person who has been appointed under or who is or has been employed in carrying out or assisting any person to carry out the provisions of this Ordinance—

(a) shall 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 this Ordinance;

(b) shall not communicate any such matter to any person; and

(c) shall not suffer or permit any person to have access to any records in the possession, custody or control of any person to whom this subsection applies.

(2) Subsection (1) does not apply—

(a) to the disclosure of any information authorized to be disclosed or furnished by the Authority; or

(b) to the disclosure of information for the purpose of any legal proceedings brought under this Ordinance, or for the purpose of any report of any such proceedings; …

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:

The study of history helps students to understand the human world through enquiring into its roots in the past. It contributes towards the development of all the generic skills involved in the study of humanities subjects, such as critical thinking and enquiry, and aims to promote the essential skills of historical investigation during the three years of study.

…

The three-year Senior Secondary History curriculum enable students to develop a global perspective, and prepares them for further education and for employment.

114.  Section 1.2 ‘Rationale’ includes the following:

The study of history helps to develop a global perspective and an enhanced understanding of the processes of interaction, diversification and rapid change in today’s world. Upon completion of this course, students should have mastered higher-order thinking skills, such as historical interpretation and analysis that will enable them to appreciate where they stand in the long flow of human history.

The topics covered in the History curriculum are of general historical significance, appropriate for illustrating the basic terminology and concepts of history, relevant to the daily experiences of students, and conducive to mastering the skills of historical study. Students will be provided with an opportunity to pursue a study that transcends the temporal, cultural and political boundaries of our world.

This curriculum takes the stand that there are some fundamental values and attitudes commonly held in our community and across other societies, such as regard for human life and dignity and the quest for peace, cooperation and prosperity. It tries to provide students with learning experiences to develop these values and attitudes, and at the same time encourages teachers to introduce different perspectives through class discussion and to remind students to review and reflect on their viewpoints to arrive at balanced judgements. Upon completion of this course, students should have cultivated the values and attitudes that are the attributes of a responsible citizen. Being one of the six elective subjects in the PSHE KLA [Personal, Social and Humanities Education Key Learning Area], this curriculum will develop students’ potential for further studies in the humanities, social sciences or perhaps business management. Training in History is also very useful for professions that require critical and independent thinking.

115.  Section 1.3 ‘Curriculum aims’ includes the following:

The aims of this curriculum are to enable students to:

(a) discover where they stand in the contemporary world through understanding the origins and development of modern events;

(b) develop the skills of critical thinking, making sound judgements and effective communication through exploring historical issues;

(c) approach past and current events in and impartial and empathetic manner, using a variety of perspectives;

(d) understand the characteristics and values of their own culture, and appreciate the shared humanity and common problems of the world’s many peoples;

(e) cultivate both national consciousness and the consciousness of being citizens of the global community, and thus become rational and sensible members of the local community, the nation and the world; and

(f) be prepared to explore in greater depth an interest of personal interest, or one that may be of relevance to their future careers and professional studies.

116.  Section 1.4 ‘Curriculum Objectives’ includes the following:

Students are expected to acquire knowledge and develop understanding of:

(a) basic historical concepts, such as cause and effect, change and continuity, and similarities and differences;

(b) diverse standpoints and perspectives inherent in different ways of representing and interpreting the past;

(c) the beliefs, experiences and behaviours of their own nation as well as other nations, and the ways in which they have shaped the development of the contemporary world,

(d) the inter-relations of major events and movements that have occurred in the local community, the nation, Asia and the world in the 20^th century; and

(e) the major historical developments and trends that have shaped the contemporary world.

Students are expected to master skills which will enable them to:

(a) distinguish fact from opinion; detect biased viewpoints, ambiguous assumptions and unsubstantiated arguments; and build up proper historical perspectives;

(b) compare and interpret historical data; arrive at reasoned conclusions based on available evidence; and recognise the fact that history is subject to reassessment based on the interpretation of new evidence;

(c) ascertain and explain the extent to which historical documents and archives reflect contemporary attitudes, values and passions;

(d) present logical and coherent arguments through the proper selection and organisation of historical data; …

117.  Section 1.5 ‘Broad Learning Outcomes’ includes the following:

By the end of the course, students should be capable of demonstrating the following:

(a) An ability to understand the broad sweep of local, national, regional and world history in the 20^th century. …

(b) An ability to reconstruct the chronology of major events with reference to the two designated themes of “Modernisation and Transformation in Twentieth-century Asia” and “Conflicts and Cooperation in the Twentieth-century World”.  They should be able to reflect on the development of a major event from beginning to end, or trace the origins of a current problem/issue and its development over time, and present their arguments in a coherent way.

(c) An ability to interpret major happenings in the 20^th century through the concept of change and continuity and to demonstrate how the interaction of these two forces promotes or obstructs change. They are also expected to demonstrate an understanding of different kinds of change in history … and critically evaluate their outcomes.

(d) An ability to see the past from the standpoint of the people under study rather than through the lens of present-day norms and values, and be able to form their own judgements.

…

(f) An ability to analyse different interpretations of major happenings in the 20^th century so as to detect the biases underpinning different interpretations, and, on such a basis, to synthesise and make valid historical judgments.

…

(h) An ability to draw sound and substantiated conclusions and to communicate their research findings to others effectively.

118.  Chapter 2 ‘Curriculum Framework’ identifies that the curriculum is designed in particular to focus on the major developments in the 20^th 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 20^th 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:

There are a number of different interpretations as to what is meant by historical knowledge. History is about happenings in the past, including the times, places and people involved; and it is about the records of these happenings, i.e. chronological historical data. It is also about the study of these records, which involves not only the understanding of established and theoretical knowledge, but also interpretation; and historical knowledge in the latter sense is dynamically changing and is always subject to reassessment based on new evidence, insights and interpretations.

History education has tended to focus mainly on the first two meanings above, and traditional history teaching has involved the transmission of facts from teachers or textbooks to students. However, contemporary history teaching tends to regard the third meaning – the study and interpretation of records – as equally important, if not more important in history education. Thus history teaching has moved from being lecture-style presentations that focus on transmitting historical facts to interactive lessons involving the construction of knowledge through the process of enquiry and discussion. Teachers take up a variety of roles in their interactions with the students and the curriculum. Their roles change according to the objectives of different activities, but have the same ultimate goal of helping students to become independent and self-directed lifelong learners. History teaching now highlights the importance of:

●     understanding the meaning and significance of the terms used in the subject;

●     detecting biased and subjective information;

●     developing historical imagination and empathy; and

●     applying historical concepts to solve problems in daily life.

120.  Section 4.3 ‘Approaches and Strategies’ includes 4.3.1, where it is recognised that:

Controversial and sensitive issues are bound to arise in the teaching of contemporary history. Through interactive activities, teachers can help students to develop critical thinking ability and problem-solving skills, so that they can distinguish fact from opinion, detect bias and draw logical conclusions based on adequate evidence. In tackling value-laden issues, interactive activities encourage students to enquire into the nature of the issues involved and to engage in disputes using higher-order thinking skills.

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:

History students need to develop the skills involved in analysing historical sources, as it is an integral part of their historical enquiry. They should ask the following questions in their analysis:

Typical questions to be asked in analysing a historical source

●     Is it a primary or secondary source?

●     When was it produced?

●     Who produced it (e.g. an eyewitness/ someone involved in the event/ someone writing about what he/she has heard or researched)?

●     From whose perspective was the source written?

●     Why was it written or produced (e.g. personal motives/ political reasons/ propaganda, etc.)?

●     Who was the intended audience?

●     How reliable is it? Does it give a detached, balanced account or is it biased?

●     Is it supported by other sources?

●     How useful is it for an enquiry into a particular issue/aspect of history?

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:

The assessment objectives for History are closely aligned with the curriculum framework and the broad learning outcomes presented in earlier chapters.

The learning objectives to be assessed in History are listed below:

Students are expected to acquire knowledge and understanding of:

●     Basic historical concepts, such as cause and effect, change and continuity, and similarities and differences;

●     Diverse standpoints and perspectives inherent in different ways of representing and interpreting the past;

●     The beliefs, experiences and behaviours of their own nation as well as of other nations, and the ways in which they have shaped the development of the contemporary world;

●     The inter-relations of major events and movements that have occurred in the local community, the nation, Asia and the world in the 20^th century; and

●     The major historical developments and trends that have shaped the contemporary world.

Students are expected to master the skills of:

●     Distinguishing fact from opinion; detecting biased viewpoints, ambiguous assumptions and unsubstantiated arguments; and building up proper historical perspectives;

●     Comparing and interpreting historical data; arriving at reasoned conclusions based on available evidence; and recognising the fact that history is subject to reassessment based on the interpretation of new evidence;

●     Ascertaining and explaining the extent to which historical documents and achieves reflect contemporary attitudes, values and passions;

●     Presenting logical and coherent arguments through the proper selection and organisation of historical data;

●     Searching for, selecting, analysing and synthesising information through various means, including the Internet, and considering various ways of arriving at conclusions and making appraisals; and

●     Applying historical knowledge and skills in everyday life.

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:

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.

125.  Under 5.5.3 ‘Public examinations’ it is noted that:

The public examinations for senior secondary History will be aligned with the “thematic approach” and “enquiry learning approach”, the pedagogue is adopted for teaching and learning this subject. The assessment of historical concepts and knowledge will be carried out via structured tasks within an enquiry framework, which demands understanding and evaluation of selected sources, and extended analytical responses.

Assessment items will assess students’ performance in a broad range of skills and abilities. Given History’s assessment objectives set out above, the most ideal question types are data-based questions and essay-type questions, as they can test a wide range of abilities such as understanding major historical events, analysing historical data and presenting systematic arguments. Data-based questions test students’ ability to interpret historical data, while essay-type questions target students’ ability to present logical and coherent arguments.

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:

INTRODUCTION

The public assessment of this subject is based on the [C&A Guide] jointly prepared by the [CDC] and the [HKEAA]. Candidates have to refer to the Guide for the knowledge, understanding and skills they are required to demonstrate in the assessment.

ASSESSMENT OBJECTIVES

The objectives of the public examination are to evaluate candidates’:

1. knowledge and understanding of the 20^th century’s major events and trends, and their interrelationships;

2. ability to recall, evaluate and select knowledge relevant to the context and to deploy it in a clear and coherent form;

3. ability to recognise and make use of the concepts of cause and consequence, continuity and change, similarity and difference in time and space;

4. ability to look at events and issues from the perspective of people in the past;

5. ability to interpret and evaluate historical evidence: to extract information from historical sources; to distinguish between fact, opinion and judgment; to detect bias; to draw conclusions based on a comparison of various types of historical sources.

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:

Over the past decades, the [HKEAA] has built a solid foundation of knowledge and expertise in delivering the different types of public assessment to a high professional standard. Robust and rigorous quality assurance practices for different stages of the HKDSE are very important for the whole community of Hong Kong as public examinations are an integral part of our education system, and the fairness and quality of assessment are essential for candidates taking public examinations in Hong Kong.

The booklet aims to provide readers with an overview of the quality assurance framework established by the HKEAA for the conduct of the HKDSE. To ensure that this framework is appropriate and of a professional standard, international peer review of its contents has been conducted. …

132.  Section 1.2 ‘Overview of the Quality Assurance Framework for the HKDSE’ includes, under the heading ‘Development of examination papers’, the statement that:

All examination papers are developed according to the Curriculum and Assessment (C&A) Guides and Assessment Frameworks. Rigorous examination paper development mechanisms are in place to ensure that examination papers are set at appropriate levels to achieve the assessment objectives.

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:

Examination papers are set in alignment with the C&A Guide and Assessment Framework for each Category A subject. Moderation committees are established for the setting of examination papers and the drafting of marking schemes. Where a subject has more than one paper, a separate moderation committee is usually appointed for each paper. Each moderation committee normally comprises five posts: a chief examiner, two moderators, a setter and the responsible HKEAA subject manager. Sometimes a number of co-chief examiners, co-moderators and co-setters have to be appointed due to the length of the paper and the range of expertise required. There is a balance among the members of the moderation committee regarding academic knowledge, teaching experience, and expertise and experience in question setting / moderation. Members of the moderation committee include university academics, secondary school teachers, curriculum offices and subject specialists.

…

Moderation committee members ensure that the design of examination papers is consistent with the curriculum aims and assessment objectives and is appropriate in terms of coverage, standard and wording. The marking scheme must be easy to follow and allow reasonable room for markers to exercise their professional judgment, so that markers are able to mark consistently according to agreed standards. The coherence of each year’s set of papers in a given subject is also reviewed. With the aid of a specification grid which shows the relationship between assessment objectives and the scheme of assessment, moderation committee members can ensure that there is an appropriate balance between questions testing knowledge / understanding and those testing higher-order skills. It is also used to check whether the paper accurately reflects the weighting of the different learning outcomes / assessment objectives.

Rigorous mechanisms for checking and proofreading of the examination paper contents are applied throughout the various stages of examination paper development, with the aim of ensuring that the questions are workable and free from printing, spelling, labelling or other errors.

Appendix A shows further details of the procedures involved in the development of examination papers.

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:

1.1 A pre-setting meeting is held to give directions to setters for question-setting with regard to the assessment objectives, and the types, coverage and demand of the questions to be set. Appropriate reference materials and feedback from previous examinations, such as the Curriculum and Assessment Guide, Assessment Framework, sample papers, past question papers, statistics, specification grids and comments on candidates’ performance of past examinations, appropriate text and reference materials, are provided to moderation committee members as appropriate.

1.2 A series of moderation meetings are held in which draft questions are reviewed, discussed and modified taking into consideration the assessment objectives, coverage, difficulty level, balance of questions of different demands and difficulty, clarity and appropriateness of wordings used, consistency of language within the paper and consistency between the English and Chinese versions (if applicable).

1.3 Relevant comments and feedback from subject committees, vetting reports and Examination Paper Quality Audit reports (if applicable) are also passed to moderation committees for their consideration and follow up as appropriate.

1.4 Marking schemes are drafted and revised as appropriate. The marking scheme should be easy to follow and allow reasonable room for markers to exercise their professional judgment, so that markers are able to mark consistently according to agreed standards.

1.5 Specification grids are prepared to check the coverage and cognitive demand of the finalised draft of the examination papers. 1.6 During the question setting and moderation process, particular attention is paid to new item types, themes / issues covered in the examination papers, changes in the paper format and changes in the marking scheme, etc.

…

2.2 Checking of the examination papers – Two subject experts who have not been involved in the moderation process are appointed as independent assessors to work through all the questions to ensure the workability and clarity of the questions. Assessors have to work through the paper from a candidate’s point of view and then complete a checklist. For bilingual subjects, each assessor would work through a different language version and then check for inconsistencies in the other version.

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):

Purpose

The purpose of these [HSI Guidelines] is to state the general principles to be followed to ensure that HKDSE examination papers are valid and fair to all candidates, no matter what gender, race, religion, ethnicity, disability status or socio-economic status they are. The Guidelines are intended to be used by moderation committee members, subject managers and senior management staff to help ensure that a consistent approach is applied across subject areas and years.

Guidelines for Ensuring Fairness

The following summarises the major potential barriers to fair assessment, covering the cognitive, affective and physical aspects that examination personnel should take into consideration. The aim is to anticipate and control for factors that may have a negative impact on the fairness of an examination.

(a) Irrelevant knowledge or skills

In developing examination questions, examination personnel should be clear about the purpose and nature of the assessment, as well as the knowledge and skills to be assessed (the construct). Test items based on irrelevant or overly specialised construct, or those beyond the scope of the curriculum and assessment framework of the subject concerned will preclude fair assessment. For example, in a mathematics question involving ballgames, knowledge such as the number of players in a team and the rules of the game are irrelevant to the purpose of the assessment. Such information would need to be given in the question if a ballgame were used as the context for assessing mathematics skills. However, it would be legitimate to use or assess this knowledge in a physical education examination.

It is understood that candidates’ ability to apply what they have learnt to unfamiliar contexts is often assessed. Hence, it is legitimate to use contexts or stimulus materials which are unfair to candidates, as long as the information required to answer the question is assumed to be common knowledge among the candidates, or sufficient information is provided in the question or input materials.

…

(c) Emotionally upsetting materials

If the context, stimulus material, or language used in an examination question cause strong emotional reactions among some candidates, this may have an adverse or unexpected impact on their performance in the examination. For example, they may respond emotionally and not be able to concentrate well in completing the examination, or they may worry that they would be disadvantaged by presenting a particular view or stance. Materials that are extremely offensive, upsetting or controversial which may lead people to question the fairness of the examination should be handled with care and avoided as appropriate, unless they are essential for valid assessment and there are no other substitutes. Even if candidates’ performance is not directly affected, the inclusion of such materials may lower the confidence of candidates and end users in the examination. Professional judgment has to be exercised in evaluating the importance of these materials for valid assessment against the extent to which the performance of candidates may be affected by the materials used.

The following are some common areas to be handled with care or avoided in order to minimise the chance of causing any unfairness due to candidates’ emotional reactions:

-     Advocating a particular side in controversial ethical, religious, social, economic or political issues which candidates or the public may have very strong views on, or negative emotions about.

-     The encouragement or glamorisation of dangerous, illegal, socially inappropriate or unacceptable behaviour e.g. bullying, theft, corruption, cheating, gambling, slander, violence.

-     The unnecessarily detailed or gruesome description of upsetting topics or events e.g. illness, death, serious accidents, murder, suicide.

-     Unfavourable stereotypes or negative depictions of particular groups of people e.g. immigrants, ethnic minorities, those with physical or mental disabilities.

-     The statement or implication that HKEAA promotes or otherwise favours any commercial product, brand, company, organisation or political stance / party.

…

Questions to ask

Examination personnel should ask themselves the following questions when designing examination questions, with a view to minimising possible bias or negative impact on the fairness of the assessment results:

-     Does the examination assess important aspects of the construct of the subject as stipulated in the [C&A Guide] and the Assessment Framework?

-     Are any irrelevant knowledge or skills involved or assessed?

-     Are the examination questions or materials likely to give rise to strong distracting or negative emotions among different groups of candidates?

-     Are different groups of people, including candidates, treated fairly and with respect in the examination?

Concluding Remarks

The above Guidelines are not exhaustive and there are scenarios not covered by the above remarks and examples. What is considered fair may change over time and issues that were neutral in the past may become sensitive and vice versa, which will mean that some of the Guidelines will become invalid and new considerations will be added. The Guidelines will therefore be reviewed on a regular basis to ensure that they reflect prevailing sentiments and practices.

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):

General Principles

1.     The marking scheme finalised at the Markers’ Meeting should be strictly adhered to in order to achieve a uniform standard of marking.

2.     Markers should mark positively.  They should give credit for what is in the answer rather than starting with a rigid, preconceived view of what the answer ought to be, or being too conscious of what is omitted.

3.     The whole range of marks for each question should be fully utilised.  Markers should not be tempted to give a ‘safe’ non-committal mark, because this will lead to the bunching of many scripts around a particular mark range, thus lessening the effectiveness of the question in differentiating between candidates of different levels of ability.

4.     A distinction script need not be perfect: it may contain minor flaws in contents or in presentation.

Data-based Questions

5.     The marking scheme is intended to act as a guide, not as a prescriptive answer sheet.  Candidates are not required to use the exact wording given in the marking scheme.

6.     Basically, the questions are designed to test candidates’ ability to interpret and evaluate historical evidence and/or data; therefore, where appropriate the emphasis in the marking should be on assessing the quality of thinking and the historical skills displayed by the candidates, rather than factual recall or the ability to write at length.  It is important to mark cautiously answers which do not display a high level of literacy, but which may show good conceptual or inferential skills.

7.     The suggested answers are ‘suggestions’ only; there may be many more answers that are not mentioned in the marking scheme but nevertheless are equally valid.  In case of doubt, markers should consult with the Examiner.

Essay-type Questions

8.     The marking scheme comprises (a) a criteria table and (b) question-specific guidelines.

9.     In the assessment process, markers should first determine an appropriate grade for an answer based on three factors, viz. understanding of the question, contents, and presentation, and then convert that grade into a corresponding mark according to the criteria table.

10.     The information given in the question-specific guidelines is intended to supplement the criteria table and provide markers with specific guidelines concerning the requirements and emphases of individual questions.

11.     In order to be fair to all candidates, scripts just below a particular grade boundary should be left where they are; they must not be pushed up to the higher grade level out of sympathetic consideration.

…

(c)     Whether ‘Japan did more good than harm to China in the period 1900-45.’  [8 marks]

L1 Vague answer, ineffective in using both Sources ad own knowledge.  [max. 2]

L2 Lack in balance, effective in using Sources or own knowledge only.  [max. 4]

L3 Sound and balanced answer, effective in using both Sources and own knowledge.  [max. 8]

Agree:

e.g. - Japan provided support to the Qing government in its reform efforts. (Source C)

- Japan offered financial support to the new Chinese regime in 1912. (Source D)

- Japanese aggression strengthened Chinese nationalism. (own knowledge)

Not agree:

e.g. - The ‘accelerated’ manner of learning led the Chinese think unrealistically that modernisation could be done in a speedy way. (Source C)

- ‘All remittance fees are to be determined by the Mitsui Company.’  The amount was not negotiable and might lead to unfairness. (Source D)

- The Shandong Question undermined China’s territorial integrity. (own knowledge)

- Japanese invasion in the 1930s and 1940s caused high casualty and undermined the security of the Nationalist Government. (own knowledge)

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 2^nd 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:

 (1)     as expected, the markers are looking to differentiate between candidates, here using three broad quality levels of answer permitting a maximum of 2, 4 and 8 marks respectively;

 (2)     those quality levels permit discrimination between:

 (a)     vague answers – which are ineffective in the use of either the Sources or the candidate’s own knowledge,

 (b)     answers lacking in balance – in that they are effective in using only one of the Sources or the candidate’s own knowledge; and

 (c)     sound and balanced answers – which are effective in using both the Sources and the candidates own knowledge;

 (3)     specific guidelines are given concerning the requirements and emphasis of individual questions;

 (4)     neither of the Sources C and D is only one-sided or points only at agreement or disagreement with the Question’s proposition, because both Sources can be deployed to support an answer both in agreement and not in agreement with the Question’s proposition;

 (5)     similarly, depending on the candidate’s knowledge and how it is deployed, the candidate’s own knowledge might be deployed to support an answer both in agreement and not in agreement with the Question’s proposition.

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 (“1^st Council Meeting” and “2^nd Council Meeting”, respectively).  For each meeting, Dr So has also exhibited the background papers tabled and the minutes taken.

151.  Tabled at the 1^st 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:

… there were opinion [sic] on the way the history of China and Japan in the first half of the 20^th century was presented, which is believed to be associated with the responsible Subject Manager’s personal political stance.

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):

13. Deletion of questions (or ‘items’ as they are generally referred to in assessment) has serious impact on the candidates, as those who answered the item correctly cannot get the mark they deserve. It is only carried out occasionally for multiple choice (MC) items. Since the first administration of the HKDSE, only 15 MC items were deleted in the past eight years.  …  The ultimate consideration for deleting an item is to raise the reliability of the examination paper which is essential for a fair and credible examination, other non-assessment factors should not be contemplated.

14. On the other hand, deletion of non-MC examination questions is extremely rare in the history of any examination. Non-MC items usually carry more marks and higher waiting in the paper. Take the 2020 HKDSE History Paper 1 Question 2 as an example, the item that arouses much public discussion is part (c) which carries 8 marks out of the total of 15, i.e. over 53% of the question total.  Deletion of this question, or worse still the whole question 2, will be very unfair to those candidates who did well in this question.  This also undermines the validity and reliability of the examination paper as fewer items will be left to assess the candidates’ performance over a reduced content and construct coverage.

15. It is extremely rare and not a professional best practice for examination boards to delete an examination question without sufficient justifications and statistical evidence, and this would be subject to challenges by candidates and other stakeholders.

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 1^st 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:

(a) Question 2(c) failed to deliver the learning objectives of the History Curriculum.  The themes behind the two Sources were not the main teaching foci of the History Curriculum as the study of the period under concern put emphasis on the Japanese invasion.  The information contained therein was unfamiliar to students and had never been taught by school teachers in detail, and thus akin to examining an out-of-syllabus area.  Whether or not the two Sources of information (i.e. C and D) were genuine exemplars of “goods” done by the Japan to China was considered debatable and too complex beyond the reach of secondary students; and the way the question was phrased (comparing “good” of Japan’s financial assistance and “harms” of Japanese invasion) was offensive, showing no empathy of the Japanese atrocities inflicted on our Chinese nationals.  All the above were not in line with aims and objectives of the History Curriculum and Assessment Guide (S4-S6);

(b) the source materials attached to the question were seemingly one-sided, partial and misleading.  It failed to provide a comprehensive context for candidates to produce a relevant and accurate answer that reflects the historical facts and events in 1900-1945.  The background of the incident was highly complex.  The important historical facts related to Source D, i.e. the contracts with the Japanese company were not materialized due to strong objection in the country, were omitted.  Also, only selected contract terms were provided.  Without any hint that the arrangement was actually part of a plot for economic invasion/penetration of Japan, the candidates might, based on the information in the Source, wrongly formed an impression that the financial assistance offered was beneficial to China, and thus leading them to give an improper conclusion;

(c) in the course of studying that part of curriculum during S4-6, the historical views on the atrocities of the Sino-Japanese War to China were clear and beyond dispute.  It would be inappropriate to lead candidates to discuss the “good” and “harm” of a war that students were taught the disastrous impact on China. The context was considered inappropriate and insensitive in a public examination setting.  The question itself also failed to reflect the objective of cultivating positive values and attitudes as stipulated in the History Curriculum and Assessment Guide (S4-S6);

(d) the question was seemingly open-ended in nature which demanded candidates to analyse Sino-Japanese relationship during 1900-1945, using information provided in the question and candidates’ own knowledge to form a conclusion on “goods” and “harms” done by Japan.  However, there was indeed not much room for discussion on the Japanese invasion during this period.  In particular, the misleading and partial Source information would make it impossible for candidates to discuss the so called “good” on a par with the “harm” as the invasion in war could not be termed “harm” casually and the atrocities so much greater than the so called “good”;

(e) the scope of the question was so wide and complex, and the duration of the historical information quoted in the source was much shorter and information much over-simplified.  The level of difficulty exceeded the capacity of a S6 candidate in general;

(f) the draft marking scheme was problematic as marks would be granted to both positive (“good”) and negative (“harm”) arguments, possibly including some twisted or unethical ones on the positive side.  The draft marking scheme indicated that points would be awarded for the so called “balanced” arguments. However, given that the question itself was misleading and biased, it would be very undesirable, if not impossible, for the draft marking scheme to require candidates to make “balanced” arguments.  Markers would also have problem in interpreting the materials.  Candidates attending a History examination were required to substantiate their arguments with historical facts; it was considered different from other subjects, like Liberal Studies and Chinese Language, where there were more room for discussion.  Empathy played a key role in history education but was omitted in this question.

(g) the question was unprofessionally designed with serious flaws, which was evident by its context, data provided, presentation, and the draft marking scheme.  No reliable marking scheme free from value judgement could be drawn up to fairly assess candidates’ performance, thus, the validity and reliability of the question to discriminate candidates’ capability was in doubt.  So it was considered inappropriate to proceed marking.

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:

… in the usual practice of the HKDSE History Examination, the sources provided were supposedly partial and could be based on one side of the argument. Candidates were expected to justify their arguments with their own knowledge which covered the other side of the argument though the data might not be covered in schools. Marks will be awarded for appropriate argument grounded on historical facts but not for simply copying information from other sources without explanation.

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 1^st 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 2^nd Council Meeting, it may be important to note that my reading of the minutes of the 1^st 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 1^st Council Meeting and the 2^nd 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 2^nd 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:

5. The member of the History Moderation Committee responded by providing a detailed explanation which is summarised as follows:

a. While “the quotation at issue (“Japan did more good than harm to China in the period 1900-45.”) sounds controversial and even provocative,” “this is an open-end question, which means that candidates may choose either to agree or disagree with the said quotation.”

b. The two sources:

(1) Japan helped to train Chinese students sent over by the late Qing government to study modern subjects;

(2) Japan provided fiscal aids to the newly inaugurated Provisional Government of the Republic of China

aim to remind students that “Japan’s impact on China had (not) been totally negative over a long span of 45 years.”  An average candidate is “presumably well familiar with the fact that Japan had long coveted China’s immense territories with their rich natural resources and had sought to aggrandize itself at the expense of China, leading to numerous armed conflicts on Chinese soils, which culminated in full-scale war between the two countries in 1937-45.”

c. “Admittedly, most candidates would find the two incidents cited in the quotation unfamiliar, but they would probably feel comfortable after reading the question (“Do you agree?).”  It is believed that “the overwhelming majority of candidates would choose to disagree with the quotation: they would first cite the two examples provided by the quotation to show that, to a small extent, Japan did some good to China; they would then proceed to use their ample knowledge of Japanese aggression to support their argument that Japan did more harm than good to China in 1900-49.”

d. “There is no doubt that the present controversy over the question under discussion would not have arisen if the quotation had been set in a conventional fashion (“Japan did more harm than good to China in the period 1900-45”) but “it has been a long tradition of the subject of History (at the present DSE level and at both the AL and Form V Certificate levels in the past) to set some controversial and even provocative quotations or questions…”  It is hoped that this type of questions “allow more rooms for discussion and argumentation in order to differentiate between pass, credit and distinction answer scripts.  Both teachers and students of DSE History are acquainted with such a tradition.”

e. It is suggested that “the issue should be brought up for joint deliberation by HKEAA and EDB in the near or immediate future.”  Right now it is appropriate “to mobilize the whole team of History markers to mark/grade the question under dispute within a couple of days, and then proceed to do some statistical analyses of the candidates’ performance in order to ascertain: (1) the percentage of candidates who disagreed with the quotation (that is, arguing that “Japan did more harm than good to China”); and (2) the percentage of candidates who performed well (say, scoring 5 marks or above out of a total of 8 marks).”

6. The member of History Subject Committee of the HKEAA offered further input:

a. The question is a bad one on many levels.  Obviously the setting agent has forgotten that examination is an integral part of the teaching and learning of the subject and the setting of questions should be in line with the learning objectives of the S6 History Curriculum.

b. The coverage of the source materials (1905-1912) does not align with that (1900-45) of the question.  “Using your own knowledge” to answer the period from 1913-1945 is defeating the purpose of Paper 1 which is designed to test the ability of students in handling source materials.  The same question may fit better in Part 2.

c. “Japan did more good than harm to China in the period 1900-45” is an offensive, unethical, and unprofessional statement.  No country would get benefit from being invaded.

d. It seems clear that “The room for discussion on some pre-determined historical incidents, such as the ones covered in this question, was considered very small; and was considered inappropriate for discussion in a public examination setting.”

7. Apart from the above said experts, a member of the History CDC-HKEAA Committee whose views draw principally on History Curriculum and Assessment Guide (Secondary 4-6) is extracted as follows:

a. Question Design: “Regarding the issues arising from the Questions (c), it should be pointed out that the question itself also serves the Curriculum Aims as mentioned in the Curriculum and Assessment Guide.  The Guide required the students to ‘[explore] historical issues,’ which had to be debatable to stimulate discussion.  Disruption resulted from the Second Sino-Japanese War on the modernization during the Nanjing Decade is undoubtedly well-known among the candidates.  It would be a failure for them not to assess its impact on China while acknowledging positive side of the Sino-Japanese collaboration, as mentioned in Source C, and explaining the negative side of the Sino-Japanese collaboration by using the materials provided in Source D.”

b. Partial Sources: “In the usual practices of the DSE History Examination, the sources provided are supposedly partial, revealing part of the historical events or the understandings with limited scope.  Candidates are supposed to be attentive to the constrains of the historical sources when providing a balanced judgement on the basis of their own knowledge, so that they can ‘approach past and current events in an impartial and empathetic manner, using a variety of perspectives.’”

c. Expected Answers: “It would be irrational and illogical to claim that the candidates may be able, if it is not impossible, to prove that the damages caused by the Second Sino-Japanese War could be compensated by the benefits brought by the previous collaborations.  Instead, any candidates that have ‘the national consciousness, and the consciousness of being citizens of the global community’ shall find it rather easy to explain why the pre-war Japanese government brought more harm than benefits to China, with ample resources that they obtained throughout the three-years course of their study.”

d. Complexity of the Question: “However, it should be reminded that the candidates may not be able to comprehend the complexity of the circumstances that led to the agreements shown in Source D, as they may not be aware the problems created by the Provisional Government, which attempted to secure loans for its ongoing struggle with the Qing Government.  Such insufficiency of knowledge on the details of this particular episode of history would make the source rather misleading, as the candidates would believe that the financial support provided by the Japanese government was essential to the success of the 1911 Revolution.  It could prevent the candidates from ‘[using] historical sources, accounts and arguments to analyse the cause-and effect relationship between events that made up the history of the 20^th century, taking into account the role played by individuals, the influence of ideas and beliefs, and the factor of chance.’”

Other assessment considerations

8. The Secretariat considers that the following two factors are relevant for deciding whether 2020 History Paper 1 Question 2 part (c) be invalidated:

a. In contrast to the member of the History Moderation Committee’s prediction that “the overwhelming majority of candidates would choose to disagree with the quotation,” a preliminary survey of the answer scripts shows that 38% of the candidates, relying heavily on sources C and D, chose to agree with the quotation and 57.2% disagree with it.  4.9% of the candidates took no stance.

b. According to Guidelines on Handling Fairness and Sensitivity Issues in Examination Paper Development for the HKDSE, it is the duty of moderation committee members to handle with care or avoid “context, stimulus material, or language” (e.g. a particular side in controversial ethical, religious, social, economic or political issues which candidates or the public may have very strong views on, or negative emotions about) that may cause strong emotional reactions among some candidates because in face of the abovementioned materials or language candidates “may respond emotionally and not be able to concentrate well in completing the examination, or they may worry that they would be disadvantaged by presenting a particular view or stance.”

9. After taking into consideration of the views in paragraph 2-8, the Secretariat agrees the design of the question concerned is problematic and the sources used seems misleading.

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 2^nd 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):

Rather, it was to set out the professional considerations discussed in the meeting on 18 May 2020 more clearly and systematically to support the decision, to consider proposals on how to deal with the 8 marks allotted to Question 2(c) and to discuss how communication to the public of the Council’s decision should be done.

172.  As shown by the minutes of the 1^st 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:

 (1)     The Sources did not give candidates the information necessary to grasp the background and intricacies behind the incidents.  Both Sources conveyed an impression of “good” that Japan had brought to China during the relevant period, but EDB’s research on the information omitted from the Sources suggested the opposite.

 (2)     The scope of the Question was so large and complex that an average Secondary 6 candidate (with his/her own knowledge and school teaching according to the curriculum) would be unable to handle the Question during the limited examination time.

 (3)     The Question was not in line with the C&A Guide, in particular that the Question failed to meet the curriculum objectives of cultivating positive values and attitudes as stipulated in the C&A Guide.

 (4)     While it was common to use partial sources in data-based questions in History examinations, such partial source materials used must still retain the essence of the historical events; the question setting must be able to deliver the learning objectives of the History curriculum and be within the syllabus so that candidates could be fairly assessed by using their knowledge and school teaching under the curriculum. However, candidates were not required by the curriculum to be familiar with the incidents covered in the Sources, such that candidates were misled into thinking that the Sources referred to “goods” rather than “harms”.

 (5)     The Question was open-ended and demanded candidates to analyse the historical incidents from different perspectives. However, the Question was in fact close-ended and there was not much room for discussion on well-accepted views on certain historical facts.

 (6)     Reliability of the Question and the draft marking scheme in discriminating candidates’ performance was in doubt.

 (7)     Some candidates who sat for the 2020 History examination might not continue their history study after HKDSE.  The misleading Sources would give them an incomplete or even biased historical view.

 (8)     The Question did not fully comply with the HSI Guidelines which provide that, inter alia, “if the context, material, or language used in an examination question caused strong emotional reactions among some candidates, this might have an adverse or unexpected impact on their performance in the examination”.

178.  A revised draft marking scheme produced by the Secretariat was discussed at the 2^nd Council Meeting.  That draft provided as follows:

(c) Whether ‘Japan did more good than harm to China in the period 1900-45.’  [8 marks]

L1 Vague answer, ineffective in using both Sources ad own knowledge.  [max. 2]

Simply copying information from Sources without explanation, or indiscriminately copying from the Source, will get zero marks.

L2 Lack in balance, effective in using Sources or own knowledge only.  [max. 4]

L3 Sound and balanced answer, effective in using both Sources and own knowledge.  [max. 8]

Evidence from both sides (harm and good) shall be presented and compared before reaching a conclusion, regardless of what viewpoint to take

Note: The questions are designed to test candidates’ ability to interpret and evaluate historical evidence and/or data; therefore, where appropriate the emphasis in the marking should be on assessing the quality of thinking and the historical skills displayed by the candidates, rather than factual recall all the ability to write at length.

E.g.

Source C:

Japan provided support to the Qing government in its reform efforts.  However, the ‘accelerated’ manner of learning le[t] the Chinese think unrealistically that modernisation could be done in a speedy way.

Source D:

Japan offered financial support to the new Chinese regime in 1912.  However, ‘all remittance fees are to be determined by the Mitsui Company’.  The amount was not negotiable and led to unfairness.

Own knowledge:

- The Twenty-One Demands intended to make China a protectorate of Japan.

- The Shandong Question undermined China’s territorial integrity.

- Japanese invasion in the 1930s and 1940s caused high casualty (such as the Nanjing Massacre) and undermined the security of the Nationalist Government.

- Japanese aggression strengthened Chinese nationalism.

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:

 (1)     Option 1: give full marks (8 points) to all candidates

 (2)     Option 2: impute a score based on candidate’s performance in Questions 2(a) and 2(b)

 (3)     Option 3: impute a score based on candidate’s performance in Questions 1(c), 3(c) and 4(c)

 (4)     Option 4: impute a score based on candidate’s performance in Questions 2(a) and 2(b), 1(c), 3(c) and 4(c)

 (5)     Option 5: assigned the highest score imputed in Option 2 and Option 3.

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 2^nd 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:

 (1)     the question design did not follow the HSI Guidelines on handling sensitive issues;

 (2)     the question was not well designed with partial and one-sided Sources, which could mislead the candidates to draw a wrong conclusion of the historical events that the Sources were about (e.g. to conclude from Source D that the economic invasion was a ‘good’ rather than a ‘harm’ to China), or guide students to explore arguments devoid of well-accepted values set out in the C&A Guide. This was evident from the unusually high percentage of candidates arguing “more good than harm” gathered from an initial screening of answers scripts which was beyond the expectation of the Moderation Committee and other subject experts;

 (3)     the question design was problematic and the use of wordings like “good” and “harm” for weighing Japan’s invasion and brutalities during that period was inappropriate;

 (4)     the two Sources were about events and complicated relations between China and Japan which the curriculum did not require the teaching and learning to go into.  This would render it not possible to discriminate the performance of candidates;

 (5)     unlike other questions, marks could not be simply allotted by counting the points made because, for this question, and emotional argument which reflected well-accepted values (such as that the magnitude of suffering of the Chinese people brought by the Japanese invasion of China was beyond description and measurement) but had not provided any points about the “good” brought by Japan to China, should not be given less marks than one which provided examples in equal numbers of points to show that there were both “good” and “harm” brought by Japan;

 (6)     marking could not be proceeded with due to a lack of an objective and fair marking scheme for this problematic question that called for answers with very strong value standard; however, for an answer devoid of value to be given marks would run contrary to the curriculum objectives of cultivating empathy and a sense of identification with the nation, and would have a great negative impact on the secondary education.

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:

Date	Event
From 24 May 2020 to 18 June 2020	Marking of History Examination paper (without marking the Question).
22 July 2020 (Wednesday) (tentative)	Release of HKDSE examination results.
23-25 July 2020	JUPAS Applicants can modify their programme choices.
27 July 2020 (Monday) (tentative)	Deadline for application for rechecking and remarking of HKDSE examination papers.
	Deadline for application for appeal review regarding HKDSE examination irregularities.
13 August 2020	JUPAS announcement of Main Round offer results.
14 August 2020	Deadline for successful Applicants to pay the acceptance fees for the Main Round offers.
19 August 2020	HKEAA release of the results of rechecking and remarking, and review on examination irregularities
20 August 2020	Applicants with upgraded HKDSE results may apply to JUPAS for reconsideration of their applications.
24 August 2020	Deadline for application to HKEAA to appeal the rechecking and remarking process.
27 August 2020	JUPAS announcement of offer results for reconsideration of applications via the JUPAS accounts.
21 September 2020 (Monday) (tentative)	HKEAA release of results regarding the appeal of the rechecking and remarking process
Late October / November	HKEAA release of results regarding the appeal review applications on marking of scripts
October 2020	Issue of HKDSE examination certificates
30 November 2020	Close of HKDSE examination

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 20^th 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 20^th 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:

However, one of the questions that concerns Sino-Japanese relations in the first half of the 20^th century contains severely biased view and serious faults.

●     Question 2(c) asked about “Japan did more good than harm to China in the period 1900-45.”  As we all know, Japan launched numerous aggressions towards China in the period mentioned in the question in which the War of Resistance Against Japanese Aggression had costed the lives of over 10 million compatriots.  Thus, this question has no room for discussion, since the answer must be only “harm”, instead of any “good”.  Given the absence of room for discussion, this question is neither suitable for educational purpose, nor suitable for a public examination that aims at differentiating students’ abilities objectively.

●     Moreover, there are two sources provided in the question: 1. Japan’s Hosei University provided law and politics courses for Chinese students in Japan during the Late Qing Reform period and 2. During the 1911 Revolutions, the Revolutionaries requested Japanese government for assistance and got support.  Since the two sources contain similar messages – both sources are showing Japan’s assistance to China in the early 20^th century, students may be misled towards “more good than harm” when using the sources to answer question 2(c).

●     Lastly, the selection of sources and the compatibility between sources and questions are also unsatisfactory.  While the two sources provided are only related to the early 20^th century (1905 and 1912), the time frame of the question is set to 1900-1945.  Thus, candidates could only use sources that are narrowly scoped to make a very general comment on a long historical period.  When setting questions, the HKEAA should provide sources with different perspectives to candidates for the sake of balanced contents, so that students could analyses them in a fair and impartial manner.

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:

Candidates easily misled by the sources provided

1. The historical materials quoted in the question are not complete.  It is highly likely that students will be misled into making wrong interpretations, resulting in possible incorrect understanding of the historical events.

2. Major issues were overlooked in the account of the historical events in Source D of the question.  Extract A and Extract B in Source D are related to the background and conditions of the loan of the Mitsui Company, in which complicated historical facts are involved.  However, a full account of these facts in absent in the Source, and not all conditions of the loan are set out in one of the Extracts.  Back then, the mineral resources of China were long coveted by Japan.  Therefore, Japan took advantage of the weakness of the Republican Government which lacked capital and demanded that if the Republican Government wished to obtain the loan, it was obliged to let Japan the shares of the Hanyeping Company (the Enclosure).  Economic independence might be lost if the event was handled improperly.  The entire nation was aware of the conspiracy behind the act and vehemently objected to the request.  At present, the major topics featured in our curriculum and textbooks are all related to the history of Japanese invasion of China.  Such historical events are only briefly covered in textbooks.  No detailed account of these historical events would be given even if they are mentioned by individual teachers in class.  Nor would such teachers comment on these events from the perspective of “good” or “harm”.  For the general Secondary 6 students studying this specific historical period of China, the depth of their learning would not reach a level that enables them to understand the developments of these events.  As such, students would easily be misled by both Extracts of Source D into thinking that it was good for Japan to make the loan to the provisional government as the loan would help the new government (i.e. the so-called “good”).  Also, students would use the events as an evidence in their answers to demonstrate that what Japan did was “good” to China.  In short, the information contained in the question per se made the candidates develop a biased or even wrong understanding of the events concerned.  Such information required students to have an understanding of the historical events that went beyond the required standards of students. The candidates could easily be misled by the one-sided information contained in the leading questions.  More importantly, it would affect the historical understanding of the candidates (especially those who will not study history in future) about this specific period.

3. Source C itself is not exactly a very appropriate example of the “good”.  The Japanese Ambassador to Qing Dynasty Yano Fumio wrote that “the Qing Government will actively keep sending students to our nation in the future, so the power of our nation will be discreetly strengthened in the East Asian continent.”  One historian considers that “the Japanese Government merely wanted to cultivate a pro-Japanese elite class in the Chinese society by allowing Qing Chinese students to study in Japan.” (fn1 Wang Ke (PhD of the University of Tokyo, Japan and Professor at the Graduate School of the Kobe University) Mentorship, Friends, and Foes: Nationalism and Modern Sino-Japanese Relations, p. 8 and p.10) As a source in a question paper of a public examination, Source C is not a sound example of “good”.  On the contrary, it will be too difficult for the students to use this as an example of “harm”.

Failure of question setting to meet the aims and objectives of the Curriculum and Assessment Guide

4. The setting of this question was not aligned with the rationale of the curriculum and failed to meet the aims and objectives set out in the Curriculum and Assessment Guide (C&A Guide).  The curriculum aims of the History subject are to enable students to explore the progress of human civilisation in the past and to learn about the history of our country and around the world, so as to nurture their sense of national identity with humanities and a global perspective and to establish positive values and attitudes.  The assessment content deviated from the learning objectives stated in the History C&A Guide for Secondary 4 to 6.  The senior secondary History curriculum takes the stance that there are some fundamental values and attitudes commonly held in our community and across other societies, such as regard for human life and dignity and the quest for peace, co-operation and prosperity.  Hence, as a 3-year senior secondary curriculum, the History subject tries to provide students with learning experiences to develop positive values and attitudes, and at the same time encourages teachers to introduce different perspectives as much as possible through class discussion and to remind students to review and reflect on their viewpoints to arrive at balanced judgments on issues.  Upon completion of the senior secondary course, students should have cultivated the values and attitudes that are the attributes of a responsible citizen (Extract from P.1-3 of the History C&A Guide (Secondary 4-6) (with updates in November 2015)).

5. The question has adopted more “good” than “harm” as the analysis dimension. Not only has it deviated from the historical facts, but it has also contradicted the rationale of the curriculum, failed to meet the aims and objectives of the C&A Guide and neglected the essence of nurturing humanity, morality and historical values as promoted in the History subject. It is impossible to make a reasonable comparison between the atrocities committed by the Japanese Army during its invasion of China and any so-called benefits generated in that period, let alone doing more “good” than “harm”. The way of setting the examination question has not considered that the people who suffered during the Japanese invasion of China would feel offended.  Such lack of empathy is like rubbing salt into the victims’ wounds.

Inappropriate to set as an open-ended question

6. Although the question is set in an open-ended form, there has already been mainstream consensus on the related historical events, and there is very little scope for argument under the related secondary school History curriculum. Under the circumstances, is there any room at all for an argument for more “good” than “harm” to be established?  Is it appropriate to set a question which does not allow an alternative conclusion to be set in the form of an open-ended question?  Will open-ended questions on similar topics like this be misleading to candidates?  The wording of the question is also inappropriate. It is absolutely inappropriate to represent the grave suffering of the whole country inflicted by the Japanese invasion by the single word “harm”.

Impossible to devise a marking scheme

7. Given the above inadequacies of the question, how can we compare and allocate marks to the different approaches of analysis?  These varied approaches include an argument for more “harm” than “good”; an argument that the superficially so-called “doing good” is in fact “doing harm”; an argument that all the so-called “good” has been overwhelmed by the brutality of Japanese invasion of China; and an argument that there is more “good” than “harm”.  Should a balanced analysis of “good” and “harm” be given higher marks, or should an argument for all “harm” and no “good” be given lower marks owing to its one-sidedness?  Or should it be the case that an argument for more than “harm” than “good” be given higher marks?

8. This question built upon a comparative analysis of “good” and “harm” of the period of Sino-Japanese history between 1900-1945 is grossly inappropriate. Coupled with the finding that Sources C and D have a high possibility of misleading candidates, it is impossible to devise a meaningful marking scheme for this question.  If we ignore all these considerations and proceed with the marking work, we will give a wrong signal in history education to the effect that the very essence of history education is on the skills of fallacious argument.  In fact, the tremendous harm Japan inflicted on China during 1900-1945 was crystal clear and beyond dispute, and it is extremely difficult to make any objective assessment free of any value judgement simply on the basis of a quantitative or balancing comparative analysis of the examples of “good” and “harm”.  When an objective marking scheme cannot be devised, no fair and reliable marking can be advised.

9. In addition, Source D has a high possibility of misleading candidates.  If the marking scheme considers it a wrong answer if candidates’ interpret Source D as examples of “good”, this will not be fair to them since it is not a reasonable expectation for candidates to be able to induce Source D as “bad” based on the provided information.  If marks are given to wrong interpretations of supporting evidence of historical events, this will contradict the educational aims by turning History examination questions into comprehension questions, with grave detrimental washback effect and seriously undermining the learning outcome of students.

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:

As regards the interests of students, there should be a very clear signal that the approach taken in the Question is not acceptable. Since it is common for teachers and students to draw reference to questions and marking schemes of past examination papers, the Question, if allowed to stay, will embed a new and contrary-to-universally-accepted-value perspective of weighing Japanese invasion against the “advantages” (if any) brought by Japan during the same period. This would lead many generations of teachers and students to learn our national history from an unacceptable perspective and discard the most important humanistic values in viewing historical events. It is also in the students’ interest that questions in the HKDSE be set in alignment with the curriculum and that their ability can be fairly assessed.

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:

Students are expected to acquire knowledge and develop understanding of:

(a)     …

(b)     diverse standpoints and perspectives inherent in different ways of representing and interpreting the past;

(c)     the beliefs, experiences and behaviours of their own nation as well as other nations, and the ways in which they have shaped the development of the contemporary world,

(d)     the inter-relations of major events and movements that have occurred in the local community, the nation, Asia and the world in the 20^th century;

…

Students are expected to master skills which will enable them to:

(a)     distinguish fact from opinion; detect bias viewpoints, ambiguous assumptions and unsubstantiated arguments; and build up proper historical perspectives;

(b)     compare and interpret historical data; arrive at reasoned conclusions based on available evidence; and recognise the fact that history is subject to reassessment based on the interpretation of new evidence;

(c)     ascertain and explain the extent to which historical documents and archives reflect contemporary attitudes, values and passions;

(d)     present logical and coherent arguments through the proper selection and organisation of historical data; …

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:

EDB recognises that history is subject to different interpretations and it is likely that teachers would bring up historical stories or instance they are familiar with to boost students’ motivation and learning to enrich the curriculum content stipulated in the History C&A Guide. That said, the teachers’ pedagogy and scope of teaching will still have to align with the requirements and principles of the History C&A Guide. Besides the requirement to align with the rationale, aims, objectives and broad learning outcomes of History education as laid down by the History C&A Guide, teachers’ teaching needs to be based on accurate and objective facts, and the teaching for the purpose of enrichment would not adversely affect the coverage of contents as required in the History C&A and should be appropriate to the age and intellectual capacity of secondary students.

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 1^st 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 2^nd Council Meeting.  In between the meetings, there had also been consultation of three subject experts, whose views were summarised and considered at the 2^nd 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 8^th 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:

 (1)     matters which are clearly identified in the relevant legislation (whether express or implied) as considerations to which regard must be had;

 (2)     matters clearly identified by the relevant legislation as considerations to which regard must not be had; and

 (3)     matters to which the decision-maker may have regard if, in its judgment and discretion, it thinks it right to do so, and the decision-maker’s choice in this regard is subject only to Wednesbury unreasonableness challenge in a judicial review.

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 2^nd 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 2^nd 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 1^st Council Meeting, and there is no suggestion that they were referred to at the 2^nd 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 1^st 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 1^st 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 2^nd 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:

Hong Kong residents shall have freedom to engage in academic research, literary and artistic creation, and other cultural activities.

276.  She also refers to Article 137 of the Basic law, which provides that:

Educational institutions of all kinds may retain their autonomy and enjoy academic freedom. They may continue to recruit staff and use teaching materials from outside the Hong Kong Special Administrative Region. Schools run by religious organizations may continue to provide religious education, including courses in religion.

Students shall enjoy freedom of choice of educational institutions and freedom to pursue their education outside the Hong Kong Special Administrative Region.

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:

 (1)     The two Sources contain similar messages, both showing Japan’s assistance to China in the early 20^th century, so students may be misled towards “more good than harm” when using the sources to answer the Question.

 (2)     The selection of sources is unsatisfactory because the two sources provided only related to the early 20^th century (1905 and 1912) but the timeframe of the question is 1900-1945, so that candidates have only narrowly scoped sources to make a very general comment on a long historical period.

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:

‘From 1951 until the end of colonial rule in 1997, Hong Kong had become better with respect to democracy and racial equality.’ Do you agree? Explain your answer with reference to Sources A and B and using your own knowledge.

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 2^nd 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:

 (1)     If the policy has some technical element and a limited circulation, it should be interpreted in the manner that an expert in the area would understand the document.  For this purpose, it is necessary to appreciate any special or technical meaning which experts may attribute to particular terms.  However, if there are no technical words in the relevant provisions to which any expert in the appropriate field may attribute special meaning, expert evidence will not be relevant.  In any event, the true meaning and effect is a matter of law for the court, and not for any expert, to decide.

 (2)     All provisions of the policy document should be read together, as a purposive unity in its appropriate legal and social setting.

 (3)     As in relation to the interpretation of a statute, when interpreting a policy document, the court should adopt a purposive approach, having regard to the document’s context and purpose. Context and purpose are to be considered in any interpretive exercise, and as part of the iterative process, and not only when an ambiguity may be thought to arise.  Nevertheless, it remains the court’s task to ascertain the intention of the drafter of the document as expressed in the language used in the document.

 (4)     Extrinsic materials may in appropriate circumstances assist in informing the court of the context or purpose of the document in question.

 (5)     The court will presume that the drafter did not intend to produce consequences which are objectionable or undesirable, or absurd, or unworkable or impracticable, or merely inconvenient, or anomalous or illogical, or futile or pointless.  But the strength of the presumption depends on the degree to which any particular construction would produce an unreasonable result.

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:

Students are expected to acquire knowledge and understanding of:

●     Basic historical concepts, such as cause and effect, change and continuity, and similarities and differences;

●     Diverse standpoints and perspectives inherent in different ways of representing and interpreting the past;

●     The beliefs, experiences and behaviours of their own nation as well as of other nations, and the ways in which they have shaped the development of the contemporary world;

●     The inter-relations of major events and movements that have occurred in the local community, the nation, Asia and the world in the 20^th century; and

●     The major historical developments and trends that have shaped the contemporary world.

Students are expected to master the skills of:

●     Distinguishing fact from opinion; detecting biased viewpoints, ambiguous assumptions and unsubstantiated arguments; and building up proper historical perspectives;

●     Comparing and interpreting historical data; arriving at reasoned conclusions based on available evidence; and recognising the fact that history is subject to reassessment based on the interpretation of new evidence;

●     Ascertaining and explaining the extent to which historical documents and achieves reflect contemporary attitudes, values and passions;

●     Presenting logical and coherent arguments through the proper selection and organisation of historical data;

●     Searching for, selecting, analysing and synthesising information through various means, including the Internet, and considering various ways of arriving at conclusions and making appraisals; and

●     Applying historical knowledge and skills in everyday life.

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):

Data-based questions should test students’ ability to use and synthesise different kinds of sources and apply facts and skills they have learned to analyse unseen sources and scenarios.  Questions in this section should range in difficulty level to accommodate students of varying ability.

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):

The public examinations for senior secondary History will be aligned with the “thematic approach” and “enquiry learning approach” – the pedagogies adopted for teaching and learning this subject. The assessment of historical concepts and knowledge will be carried out via structured tasks within an enquiry framework, which demands understanding and evaluation of selected sources, and extended analytical responses.

Assessment items will assess students’ performance in a broad range of skills and abilities. Given History’s assessment objectives set out above, the most ideal question types are data-based questions and essay-type questions, as they can test a wide range of abilities such as understanding major historical events, analysing historical data and presenting systematic arguments. Data-based questions test students’ ability to interpret historical data, while essay-type questions target students’ ability to present logical and coherent arguments.

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 20^th 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 2^nd affirmation, to the IGCSE question in 2013 – set for a similar age-group – which asked:

‘Most people in Germany benefited from Nazi rule.’ How far do you agree with this statement? Explain your answer.

313.  Though Mrs Hong has sought to answer that point in her 2^nd 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 2^nd 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. 

 (1)     The Council considered that the Question could lead candidates to explore arguments devoid of the well-accepted values set out in the C&A Guide, reflected in the high percentage of candidates arguing “more good than harm”.

 (2)     The two Sources were about events and complicated relations between China and Japan which were not covered by the curriculum or school teaching.  This rendered it impossible to discriminate between the performance of candidates.

 (3)     Marking could not be proceeded with due to a lack of an objective and fair marking scheme.  For an answer devoid of value to be given marks would run contrary to the curriculum objectives of cultivating empathy and a sense of identification with the nation, and would have a great negative impact on secondary education.

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:

 (1)     At the outset of the 1^st Council Meeting, the two General Managers of the Assessment Development Division of the HKEAA explain to the Council members the assessment objectives of the History subject.

 (2)     After deliberation on the requirements of the curriculum, members agreed that the two Sources concerned events and complicated relations between China and Japan which the curriculum did not cover, rendering it impossible to discriminate between the performance of candidates.

 (3)     The HKEAA does not consider the use of unseen sources or extracts to be problematic in itself.  What was objectionable about the Sources was that they did not provide candidates with sufficient information and context to grasp the background and intricacies behind the incidents in question.

 (4)     It was the Council’s professional assessment that the poor design of the Question could mislead students into exploring arguments which are incompatible with the well-accepted value set out in the guide.  This was evident from the high percentage (about 38%) of candidates arguing “more good than harm” in their answer scripts, which was beyond the expectation of the Moderation Committee and other subject experts.  It is not for the Applicant, nor for the Court, to second-guess the Council’s academic judgment in this respect.

 (5)     Members also took the view that it was impossible to devise an objective and fair marking scheme that would be compatible with the C&A Guide.  In particular, giving marks to an answer “devoid of value” would run contrary to the curriculum objectives and would have a great negative impact on secondary education.

 (6)     There is no proper distinction to be drawn between curriculum objectives and assessment objectives, where the subject curriculum forms the basis of the assessment designed and administered by the HKEAA.

 (7)     Even though the C&A Guide states that controversial and sensitive issues are bound to arise in the teaching of contemporary history, proper care and consideration must be taken when designing questions which touch upon sensitive subject matters.  Having considered the HSI Guidelines, the HKEAA Council members felt the Question failed to comply with the guidelines.

 (8)     No assistance is to be gained from looking at a question on a different examination with its own devised marking scheme, such as the IGCSE.  Nor was it necessary for the HKEAA Council to have considered such a question in its own deliberations.

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:

 (1)     A candidate who knows little to nothing about Chinese history in the first half of the 20^th century would expect poor marks on the Question.  But if he happens to know a great deal about the other three topics examined in questions 1, 3 and 4, he might well be given an imputed score based on each of the sub-questions (c), which may wholly unfairly give him a better score than he would in fact have achieved.

 (2)     A candidate who can pick out data from sources provided with questions, but has little wider knowledge or little ability to deploy critical thinking and argument, would expect to score well on questions 2(a) and (b), but not on the Question. Nevertheless, he will now be imputed with a good score for the Question, which may wholly unfairly give him a better score than he would in fact have achieved.

 (3)     A candidate who is less able to pick out data from sources provided with questions, but who has a wide knowledge of early 20^th century Chinese history far greater than his knowledge of the other topics may expect to perform poorly on questions 2(a) and (b) and perhaps all of the other questions 1, 3 and 4, but would expect to achieve high marks on the Question.  Nevertheless, he will now be imputed with a poor score for the Question, which may wholly unfairly give him a lower score than he would in fact have achieved.

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:

 (1)     The Ordinance does not provide for any right of candidates to be consulted or make representations before the HKEAA makes any decision on its conduct of the HKDSE.

 (2)     Allowing affected candidates to make representations would be wholly impractical and would place an intolerable burden on the HKEAA, particularly against the tight timetable when examination results are due to be released on 22 July 2020.

 (3)     Invalidating an examination involves professional expertise which candidates might not fully appreciate.  Insight into candidates’ abilities to discern “harm” from the Sources was already available from the screening statistics.

 (4)     Candidates’ interests were a weighty consideration borne in mind by the HKEAA as part of the decision-making process.

 (5)     The mark adjustment mechanism would minimise any impact and unfairness resulting from invalidation of the Question.  After considering the various options, the HKEAA in its professional judgment selected the mechanism it considered appropriate to minimise the prejudice caused to candidates.  Candidates will be receiving the higher of the two imputed scores as the final adjusted score for the Question.

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 20^th-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)