803 Funds Ltd v. Secretary for Education

HCAL 1969/2020

[2021] HKCFI 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1969 OF 2020

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BETWEEN

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Before: Hon Chow J in Chambers (Open to Public)

Date of Hearing: 20 April 2021

Date of Decision: 20 April 2021

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D E C I S I O N

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1.In this application for judicial review, the Applicant seeks to challenge the decision of the Education Bureau dated 3 July 2020 (“the Decision”) upon review of its earlier decision dated 25 March 2020 refusing to disclose what is referred in the Form 86 to as the “Withheld Information”, which is defined in §9 thereof to mean “the names of the schools and the teachers involved and the findings and results of investigation in the substantiated cases” of professional misconduct by teachers.  The application was made on 30 September 2020.  It is opposed by the Secretary for Education (“the Secretary”).  A rolled-up hearing of the application has been fixed for 20 May 2021, with 1 day reserved.

2.By an inter-partes summons dated 7 April 2021, Hong Kong Professional Teachers’ Union (“the Union”) applied for leave to intervene by way of written submission, and for leave to rely upon the Affidavit of Tam Yiu Wang dated 7 April 2021 to resist the application for judicial review.  The Union is a teachers’ trade union registered under the Trade Unions Ordinance (Cap 332).  It has about 94,000 teachers and education practitioners as at 31 March 2021 in Hong Kong as its members.

3.The proper approach to be adopted by the court in considering an application for intervention in public law proceedings was considered by Appeal Committee of the Court of Final Appeal in QT v Director of Immigration (2018) 21 HKCFAR 150, at §§13-18, which this court applied in MK v Government of the HKSAR [2019] 2 HKLRD 978, and Junior Police Officers’ Association of the Hong Kong Police Force v Electoral Affairs Commission [2019] HKCFI 2887.  In the latter case, at §5, the court summarized the relevant considerations as follows:

“In summary, subject to considerations of specific prejudice to the parties to the proceedings, the primary consideration of the court when deciding whether to permit intervention is whether the proposed intervener is likely to be able to provide additional, material, assistance on either law or fact or the consequences of the court’s judgment which it is unlikely will be provided by the immediate parties to the proceedings.”

4.On behalf of the Union, Mr Tam submits that the Union is an “interest party” within the meaning of Order 53, rule 1A of the Rules of the High Court, Cap 4A, being “a person … who is directly affected by the application”.  Mr Tam further argues that the Union is likely to be able to provide additional material assistance on the law, fact or the consequences of the court’s judgment which it will unlikely be provided by the Applicant or the Secretary in the following aspects:

(1) The consequences of the court allowing the judicial review, in this case disclosing the identities of the teachers in substantiated cases to the public, would be uniquely felt by the teachers concerned.  It is said that the Applicant is effectively advocating a “name and shame” system which would hamper and inhibit the teaching work and positive classroom environment, and give rise to a risk of “doxxing”.  The Union has in fact received requests for assistance from some of its members, who are rumoured to be under investigation for professional misconduct and whose personal information has been disclosed through the internet.  The teachers concerned are worried about the personal safety of themselves and their family members. Some of them have received harassing calls and text messages after their telephone numbers have been maliciously disclosed, and some even require medical and/or psychiatric assistance.  Publicly naming the teachers concerned would, it is said, also create a “labelling effect” for those who have already improved and corrected their mistakes, and damage their careers permanently. Four specific instances where the teachers concerned sought assistance from the Union (with the relevant records produced as exhibits) are referred to in the Affidavit of Tam Yiu Wang.

(2) The disclosure of the identities of the teachers concerned can have a huge effect on teaching and classroom management, and the trust and relationship between parents, teachers and schools, which the Union possesses expertise to assist the court.

(3) The intervention of the Union can serve to reassure the public that all points of view have been taken into account in the present application for judicial review, and contribute to the public’s confidence in the judicial process.

5.My assessment of the likelihood of the Union being able to provide additional material assistance on the law, fact or the consequences of the court’s judgment in this case is as follows.

6.First, in relation to assistance on law, the grounds of challenge as advanced by the Applicant in the Form 86 include errors of law, irrationality and fettering of discretion.  These are typical grounds of judicial review which the court can readily deal with in the usual manner. In addition, there will be a substantial issue regarding the Applicant’s standing to bring the present application for judicial review, which goes to the court’s jurisdiction to entertain the application.  I do not see that the Union will be able to provide any special assistance on law in respect of the substantive grounds of judicial review, or the issue of the Applicant’s standing to challenge the Decision.

7.Second, in relation to assistance on fact, I have looked at the Affidavit of Tam Yiu Wang.  It does not, in fact, go much further than the submissions of the Applicant as summarized above.  While the materials contained in the Affidavit may be relevant to the likely consequences of the court allowing the application for judicial review, I do not consider that the Union is likely to provide additional material assistance on fact in this case.

8.Third, in relation to assistance on the consequences of the court’s judgment, as I have said, the Affidavit of Tam Yiu Wang, and the submissions of the Union, are likely to be of some assistance. However, the points made by the Union have, to a large extent, already been made by the Secretary in the Affirmation of Lee Wai Ping filed on 29 January 2021, at §§31-35.  To be fair to the Union, it is right to point out that it does not have access to that affirmation.  In any event, the concerns raised by the Union about the consequences of disclosing the identities of the teachers in substantiated cases to the public are, I believe, pretty obvious.  I do not see that much further assistance can be provided by the Union.

9.There are a few other matters of relevance to the court’s exercise of its discretion whether to permit the intervention of the Union in this case:

(1) Given the limited extent of the proposed intervention, I do not consider that any substantial prejudice will be caused to either the Applicant or the Secretary should the court allow the application.  Any evidence which the Applicant may wish to file in reply will be very limited.  There will not be any substantial lengthening of the hearing, and the hearing date of 20 May 2021 can be kept.

(2) The Applicant has raised a point about the delay of the present application.  While I accept that the application could be made earlier, and no explanation for the delay has been offered by the Applicant, I do not consider that any specific or real prejudice has or will be caused to the Applicant as a result of the delay.

(3) I also bear in mind the general public importance of the present application.  However, as observed by Sedley LJ in Quila v Secretary of State for the Home Department [2010] EWCA Civ 1482, at §24, which was quoted by the Appeal Committee in QT, ante, at §18, “litigation, even on issues of general importance, is not an open battleground”.

10.Overall, while I appreciate the Union’s good intention to assist the court in the determination of the present application for judicial review, which affects not only the interests of teachers, but also of students, parents and schools, I do not consider that there is sufficient justification to permit the proposed intervention of the Union.  The Union’s summons dated 7 April 2021 is therefore dismissed.  Mr Tam accepts that in such scenario, the Applicant should have the costs of the application.  I so order, and shall assess the Applicant’s costs by way of summary assessment.  Mr Liu informs that court that the Secretary is not seeking any costs order in respect of the Union’s application to intervene.  There will therefore be no order as to costs as between the Secretary and the Union.

Mr John Hui, instructed by Sit, Fung, Kwong & Shum, for the Applicant

Mr William Liu, SALO (Civil Law) of Department of Justice, for the Putative Respondent

Mr Jeffrey Tam & Mr Albert Wan, instructed by Ho, Tse, Wai & Partners, for the Proposed Intervener