803 Funds Ltd v. Secretary for Education

HCAL 1969/2020

[2021] HKCFI 2874

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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Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Court

Date of Hearing: 20 May 2021

Date of Judgment: 28 September 2021

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JUDGMENT

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INTRODUCTION

1.This is an application for judicial review of the decision of the Education Bureau (“EDB”) dated 3 July 2020 (“the Final Decision”) upon review of its earlier decision dated 25 March 2020 refusing to disclose to the Applicant the “Withheld Information”, which is defined in §9 of the Form 86 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 of teachers.  For reasons which I shall endeavour to explain in this judgment, I find against the Applicant in this application.

BASIC FACTS

(i)  Complaints against teachers received by EDB and complaint handling process

2.EDB is the teacher registration authority under the Education Ordinance, Cap 279 (“the EO”), and is responsible for investigating complaints of professional misconduct against teachers and taking appropriate follow-up actions in substantiated cases of professional misconduct.

3.When EDB receives a complaint of professional misconduct against a teacher, it would request the relevant school to conduct investigation into the alleged professional misconduct and submit its investigation report to EDB.  In conducting investigation, it is common that the school would interview the teacher involved to find out the relevant facts, and allow the teacher an opportunity to make representations in response to the complaint.

4.In the course of the complaint handling process, EDB would also invite the teacher involved to make written representations.  In doing so, it is specified in the invitation letter that the purpose of collecting the information is to enable the Permanent Secretary for Education (“the Permanent Secretary”) to consider the appropriate follow-up action.  The invitation letter contains a standard paragraph stating as follows:

“You are invited to provide, in written form, information/explanation that you would wish the Permanent Secretary for Education, the teacher registration authority under the Education Ordinance (Cap 279), to take into account when considering taking disciplinary action against you in relation to your misconduct as revealed in our investigations”.

5.EDB considers that there is a mutual understanding between the school / teacher involved and EDB that the information collected during the complaint handling process would be used solely for the purpose of investigation into the alleged misconduct of the teacher and consideration of the appropriate follow-up action, if any, to be taken by EDB, and the information so collected would not be disclosed to any third party unless required by law or under a court order.

6.From June 2019 to March 2020, EDB received a total of 192 complaints of suspected professional misconduct of teachers relating to the social events arising out of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill”).  Of the 192 complaints, 39 cases were substantiated.  For those substantiated cases, EDB issued reprimand letters to 13 teachers, warning letters to 4 teachers, advisory letters to 9 teachers, and verbal reminders to 13 teachers.

7.There was no standard complaint form for the public to lodge complaints against teachers.  In most of the 39 substantiated cases, the names of the schools and teachers involved were specified.  For other cases, if only the names of the teachers were specified, EDB would check against its internal records to identify the schools involved.  On the other hand, if only the names of the schools were specified, EDB would invite the schools concerned to identify the teachers involved[1].

8.In reaching its findings and results in the 39 substantiated cases, EDB collected information from (i) the complainants, (ii) the schools involved, and (iii) the teachers concerned.  Hence, its findings and results in the 39 substantiated cases would be based on and/or contain information provided by one or more of these three sources.

(ii)     The Applicant’s request for information

9.The Applicant, incorporated in 2019, is a company limited by guarantee.  The object of the Applicant, as stated in paragraph 4 of Part A (Mandatory Articles) of its Articles of Association, is “for the organisation and carrying out of activities to promote law and order and civic-minded activities, on a non-profit-making basis”[2].

10.On 4 February 2020, Sit, Fung, Kwong & Shum (“SFKS”), on behalf of the Applicant, made a request under the Code on Access to Information (“the Code”) to EDB for information relating to substantiated cases of professional misconduct of teachers (“the Request”). The letter stated, inter alia, as follows:

“It has recently come to our client’s attention that some teachers in Hong Kong were alleged to have been involved in misconduct. Our client learnt from the news and found it worrying that more than 60 teachers and teaching assistants were arrested and/or charged for various offences in the recent social unrest and that the Education Bureau had, between the mid of June to early November, launched over a hundred of preliminary investigations into alleged breaches of professional ethics, 60 cases of which had been completed with around half of them preliminarily found to be substantiated. Our client understands that the Education Bureau is following up on these cases and it will consider the necessary disciplinary actions to be taken in accordance with the law.

Our client is deeply concerned about the alleged misconduct of teachers, who are expected to be law-abiding citizens and role models for our future generations, and their potential adverse influence on students. In our client’s view, allegations substantiated upon investigation cast serious doubt about the propriety of the teachers concerned and whether they remain fit and proper to teach at schools. Our client considers that members of the public, particularly parents of local students, have a vital interest in accessing relevant information relating to those teachers in order to make an informed decision as to whether their children shall study or continue to study in a particular school. It is our client’s position that, balancing the seriousness and graveness of the potential harm to students and the alleged misdeed of the teachers concerned, together with all other relevant circumstances, the public interest warrants the disclosure of such information by the Education Bureau, which has a duty to safeguard the interests and well-being of students in Hong Kong.

In the circumstances, we are instructed to hereby request pursuant to the Code for relevant information in relation to the aforesaid substantiated misconduct cases with particulars including but not limited to the following, to the extent permitted by the Code and all applicable laws:

1 the number of such substantiated cases;

2 the schools and the teachers involved;

3 the nature of the relevant misconduct and/or breaches of professional ethics;

4 the findings and results of investigation in such substantiated cases; and

5 the follow-up actions to be taken by the Education Bureau.”

11.By letter dated 25 March 2020, EDB provided to SFKS part of the information sought (namely, items 1, 3 and 5 referred to in SFKS’s letter of 4 February 2020), including the following:

(1)  Since June 2019, EDB had completed investigations and taken follow-up actions regarding 39 substantiated cases of teachers’ professional misconduct relating to the recent social incidents. The majority of those cases related to “making inappropriate remarks that invoke hostility or malice and the use of impolite or offensive language by teachers”.

(2)  Of the 39 substantiated cases, EDB had issued 13 reprimand letters and 4 warning letters to the teachers concerned, warning them that cancellation of registration as teacher under the EO might be considered if they misconducted themselves again.  ED had also issued 9 advisory letters and 13 verbal reminders, reminding the teachers concerned to refrain from activities that were detrimental to the image of the teaching profession and to follow behavioral norms acceptable to society.

12.EDB was not, however, prepared to provide information relating to the names of the schools and teachers involved and the findings and results of investigation in the 39 substantiated cases (to the extent that the Request was for specific information in each such case) (“the Initial Decision”), by reason of §§2.14(a) and 2.15 of Part 2 of the Code, which provide that certain types of information could be withheld from disclosure:

(1)  §2.14(a) of the Code -

“Information held for, or provided by, a third party under an explicit or implicit understanding that it would not be further disclosed. However, such information may be disclosed with the third party’s consent, or if the public interest outweighs any harm or prejudice that would result.”

(2)  §2.15 of the Code -

“Information about any person (including a deceased person) other than to the subject of the information, or other appropriate person, unless -

a. such disclosure is consistent with the purposes for which the information was collected, or

b. the subject of the information, or other appropriate person, has given consent to its disclosure, or

c. disclosure is authorized by law, or

d. the public interest in disclosure outweighs any harm or prejudice that would result.”

13.In respect of §2.14(a) of the Code, EDB considered that:

(1)  the information requested was provided by third parties (including the teachers and schools involved and the complainants) for the purpose of investigation of suspected misconduct cases which should be dealt with in confidence and/or was held for third parties (including the teachers and schools involved) under an explicit or implicit understanding that it would not be further disclosed; and

(2)  the public interest in disclosure did not outweigh the harm or prejudice that would result from disclosure (including the harm of exposing the Government to liability for breach of confidence).

14.In respect of §2.15 of the Code, EDB considered that:

(1)  the names of the teachers and schools involved were “personal data” of the teachers within the meaning of the Personal Data (Privacy) Ordinance, Cap 486 (“the PDPO”);

(2)  the personal data in question were collected by EDB for the purpose of investigating suspected misconduct cases, whereas the Request was made for the purpose of enabling “members of the public, particularly parents of local students … to make an informed decision as to whether their children shall study or continue to study in a particular school”;

(3)  the disclosure of the information requested was not consistent with the original purpose for which the information was collected;

(4)  EDB did not have the consent of the teachers concerned in the substantiated cases of misconduct or of any other appropriate persons to disclose the information requested;

(5)  the disclosure of such information was not authorized by law; and

(6)  the public interest in disclosure did not outweigh the harm or prejudice that would result from disclosure.

15.EDB’s letter dated 25 March 2020 also stated as follows:

“As for paragraph 2.15(d), i.e., whether the public interest in disclosure outweighs any harm or prejudice that would result, we would like to assure your client that there exist an effective system to ensure that all de-registered teachers are not able to take on any teaching post, permanent or temporary, in a registered school in Hong Kong. Thus students are protected from being taught by persons whom the Permanent Secretary for Education does not see fit to teach and public interest is sufficiently safeguarded…

We appreciate that some parents may wish to take into consideration whether any teacher in a school has an adverse professional conduct record when choosing a school for his/her child(ren). It is worthy to point out that EDB encourages parents to choose the appropriate school for their children based on their aptitude, character and needs. When selecting a school, it is important that parents should understand the school’s vision and mission, development goals, curriculum features, policies on supporting students’ growth, and school ethos so as to choose a school that suits their children’s development. EDB would take appropriate follow up actions on teachers’ misconduct upon completion of investigations. For serious cases, registration of the teacher concerned would be cancelled and he/she would no longer be able to teach in schools. Students’ and public interest is safeguarded by the teacher registration system. Schools, being employers of teachers, will also monitor the professional conduct and performance of their teachers. In all circumstances, EDB will continue to promote and strengthen parent communication with schools in the spirit of home-school cooperation. We will also explore possible ways to enhance the transparency of relevant information for the parents and other stakeholders whose continued support is key to maintaining the professional quality of the school.

If you are not satisfied with our decision to refuse your client’s request for access to information in relation to items 2 and 4 of the information requested, you may write to request an internal review…”

16.By letter dated 15 May 2020, SFKS on behalf of the Applicant requested EDB to conduct an internal review of the Initial Decision, stating as follows:

“Our client is deeply disappointed by your refusal to disclose items 2 and 4 of the information requested pursuant to the Code. Paragraphs 2.14(a) and 2.15 of Part 2 of the Code do not lay down any blanket prohibition against disclosure of the relevant information. Both paragraphs expressly provide that such information may be disclosed where ‘the public interest in disclosure outweighs any harm or prejudice that would result’.

Our client firmly believes that the professional conduct of teachers is a matter of overriding public interest. Misconduct of certain teachers causes long-lasting harm to young and developing minds. It gives rise to grave and widespread concern on the part of the general public in Hong Kong including, in particular, parents of local students who may be anxious to select the right schools for their children and to ensure that they are protected from being taught by persons who have blemished records of professional conduct. In selecting schools all parents in Hong Kong require and deserve factual information and not rumours or hearsay. Teachers are professionals that heavily rely on public trust. Withholding key information from the public is simply counter-productive. If will not help the teaching profession.

Our client fails to see how students’ and public interest is sufficiently safeguarded by the teacher registration system as suggested in your letter. The concern is not about de-registered teachers. It is about those who are the subjects of substantiated complaints and who are still allowed to teach. The need to inform the public in this regard is similar to disclosing the location of COVID-19 patients.

Our client strongly believes that the public interest in disclosure of such information far outweighs any harm or prejudice that would result….”

17.By letter dated 3 July 2020 conveying the Final Decision to SFKS, EDB maintained the Initial Decision and declined to disclose the Withheld Decision.  In that letter, EDB explained the reasons for the Final Decision as follows:

“As stated in our previous letter dated 25 March 2020, the Education Bureau (‘EDB’) is not in a position to provide the withheld information based on paragraphs 2.14(a) and 2.15 of Part 2 of the Code. In particular, we do not consider that the public interest in disclosure outweighs the harm or prejudice that would result. We would like to explain once again that any teacher considered not fit to teach would be de-registered. Misconducts committed by teachers are of varying degrees of severity. Those who have received reprimand, warning or advice from EDB are considered still fit to teach but had conducted themselves in a way / ways that would require correction / improvement. The purpose of reprimanding, warning or advising the teachers is to assist them to make the requisite correction / improvement. Schools, as their employer and being accountable for the education provided to students, are responsible for monitoring these teachers’ conduct and performance. We consider disclosing the withheld information may bring the following harm or prejudice -

(a) Teachers who have corrected / improved the way in which they conduct themselves would be labelled. This would not be fair to them. This would also provide a disincentive for teachers reprimanded, warned or advised by EDB to reflect upon their problematic conduct / behavior and seek improvement but would attract them to express disagreement with EDB.

(b) The schools concerned as well as students and other teachers of the schools would be under pressure as a result of disclosure of the withheld information. EDB repeatedly stress and appeal to schools and the public the importance of providing students with a calm and orderly teaching and learning environment so that they can focus on their studies and grow healthily. Disclosing the withheld information may mislead the public to form biased views on the schools, teachers and students concerned because of the conduct / behavior of individual teachers that needs correction / improvement.

(c) Disclosing the withheld information may harm the trust and relations between EDB, schools and teachers, which would prejudice the future supply of related information and the conduct of this Bureau’s business would be adversely affected.

Furthermore, we would also like to let your client know that we have adopted measures to strengthen the protection of students in respect of appointment of staff in schools. Schools as employers have the responsibility to guard against improper persons to be appointed as teachers through their recruitment process and administrative measures. Schools must, among others, verify the potential appointees’ teacher registration status, including any record of having received any reprimand, warning or advice from EDB and whether they are being investigated by schools or EDB over professional misconduct allegations, as well as examine whether they have any criminal proceedings or investigations, including but not limited to arrest or apprehension by the police.

Besides the harm or prejudice that would be done to the education sector, we would like to reiterate that disclosing the withheld information may result in the following risks -

(d) Exposing the Government to liability for breach of confidence as the withheld information was provided by third parties for the purpose of investigation of suspected misconduct cases, which should, according to established procedures, be dealt with in confidence.

(e) Rendering the Government liable to be issued with an enforcement notice under [the PDPO] as well as to pay compensation to any individual who suffers damage by reason of the Government’s contravening the Data Protection Principle 3 in Schedule 1 to PDPO since the intended purpose of using the data for enabling members of the public to select schools does not fall within the original purpose for which the data were collected, i.e. investigating suspected misconduct cases.

Having considered and balanced the public interest in disclosure with the harm or prejudice that would result, it does not appear to us that public interest in disclosure is compelling and would override the interest in preserving confidentiality and protecting personal data.  We trust that the continued close cooperation between schools and EDB is conducive to providing our students with a caring and safe learning environment.”

In what follows, the reasons given by EDB for refusing to disclose the Withheld Information mentioned in sub-paragraphs (a), (b) and (c) in its letter of 3 July 2020 will be referred to as the “Fairness”, “Adverse Impacts” and “Trust and Confidence” Grounds.

18.The balancing exercise which EDB carried out in deciding to refuse to disclose the Withheld Information to the Applicant is further explained in the Affirmation of Lee Wai Ping, Principal Education Officer (Professional Development and Training), filed on 29 January 2021:

“[29] It is alleged by the Applicant that disclosure of the Withheld Information can serve to ‘ensure that [students] are protected from being taught by persons who have blemished records of professional conduct.’

[30] First of all, the concern of the Applicant has been sufficiently addressed by the existing registration and complaint system managed by the EDB. The prevailing teacher registration system under the EO and the complaint mechanism are sufficient to ensure that only teachers who are fit to teach could remain registered and those who are unbefitting and have seriously misconducted cannot continue to teach… teachers who have received reprimand, warning or advisory letters from the EDB may need correction and/or improvement in certain areas but may not be considered unfit to teach. Disclosure of their information will create unnecessary pressure on those teachers and schools, which may deter them from taking remedial actions and/or making improvements.

[31] The EDB also considers that a balance should be struck among the interests of different stakeholders including students, parents, teachers, schools, the Government and society as a whole. Disclosure of the Withheld Information will bring immense pressure to teachers and schools involved, as well as students, other teachers and schools as a whole. This is because should the Withheld Information be disclosed, it will likely be published and as a result, spark public debate. The public may easily stigmatise the teachers involved and form over-generalised views on the schools involved in terms of the quality of the teachers and internal management. This will bring undue pressure, not only to the teachers and schools involved, but also to other teachers in the same schools who have all along been professionally well conducted. Besides, the public, including parents, teachers and students are likely to have divided views on the cases including the conduct of the teachers involved, the follow-up actions recommended by EDB, etc. The above effect of disclosure would be detrimental to the promotion of a calm and orderly teaching and learning environment which would allow student to focus on their studies and grow healthily.

[32] Disclosure of the Withheld Information to the Applicant may also deter schools and teachers from supplying information to the EDB in the future. This will in turn hamper the effective collection and verification of material facts throughout the complaint handling and investigation process…

[33] The partnership between EDB and the schools is important in maintaining the quality of teachers. Schools are entrusted to discharge their duties …

[34] Besides, the EDB shall ensure a conducive environment for schools to conduct investigation and put in place necessary measures to address issues identified. It is envisaged that disclosure of the Withheld Information will create an undue adversarial environment between schools and teachers and between schools and parents, thereby potentially [undermining] the effectiveness of schools in ensuring normal operation and effective teaching and learning.

[35] Lastly, the EDB has taken into account the Applicant’s concern about the need to alert parents and the public of the occurrence of professional misconduct cases in the schools so that parents could decide whether to continue to send their children to the schools concerned. In this connection, the EDB considers that parents should be encouraged to choose the appropriate school based on their children’s aptitude, character and needs and the school’s vision and mission, development goals, curriculum features, policies on supporting students’ growth and school ethos, instead of focusing narrowly on whether a particular teacher in that school has been found to have any professional misconduct.

[36]  The EDB therefore considers that the harm and prejudice which may be caused to the stakeholders should the Withheld Information be disclosed outweighs the benefits of disclosure as contended by the Applicant.”

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

19.On 30 September 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Decision.  In the Form 86, 3 grounds of judicial review are advanced:

(1)  errors of law;

(2)  irrationality; and

(3)  fettering of discretion.

RELEVANT LEGAL AND REGULATORY FRAMEWORK

(i)  The Education Ordinance

20.EDB is the authority for the formulation, implementation and monitoring of education policies, including monitoring the quality of school education, in Hong Kong.

21.Under s 42(1) of the EO, no person shall teach in a school unless he is (i) a registered teacher; or (ii) a permitted teacher.

22.Section 46 of the EO provides that the Permanent Secretary may refuse to register an applicant as a teacher if it appears to him, amongst other things, that the applicant -

“(a) is not a fit and proper person to be a teacher;

(b) has been convicted of an offence punishable with imprisonment”.

23.Under s 47 of the EO, the Permanent Secretary may cancel the registration of a teacher in, inter alia, the following circumstances -

“(a) on any ground specified in section 46 which applies to the teacher, whether or not such ground existed at the time when he was registered as a teacher;

(b) if it appears to the Permanent Secretary that the teacher is incompetent;

(d) if it appears to the Permanent Secretary that the teacher has behaved in any manner which, in the opinion of the Permanent Secretary, constitutes professional misconduct; or

(e) if it appears to the Permanent Secretary that the teacher has behaved in any manner which, in the opinion of the Permanent Secretary, is prejudicial to the maintenance of good order and discipline in the school in which the teacher teaches”.

(ii) The Code on Access to Information

24.The Code sets out the Government’s policy regarding the provision of information by government departments to the public. The Code was first introduced to some government departments on 1 March 1995 and has been applied to the whole of the Government since 23 December 1996.  In the introduction to the Code, it is stated that:

“The Government exists to serve the community well within available resources. To this end, it recognises the need for the community to be well informed about the Government, the services it provides and the basis for policies and decisions that affect individuals and the community as a whole.”

The Code provides a formal framework for access to information held by government departments.  It defines the scope of the information that will be provided, sets out how the information will be made available, and lays down procedures governing its release, as well as procedures for review or complaint.

25.Part 1 of the Code sets out the scope of the information that will or may be published or made available routinely, or provided on request, by the Government.

(1)  §1.1 of the Code states that the Code applies to all government departments as listed at Annex A, which includes the “Education Bureau”.

(2)  §1.6 of the Code states that: “Each department will also, on request, provide additional information relating to its policies, services, decisions and other matters falling within its area of responsibility, except that requests for information in the areas listed in Part 2 may be refused.”

(3)  §1.7 of the Code states that: “The Code does not affect statutory rights of access to information.  Equally the Code does not affect legal restrictions on access to information whether these are statutory prohibitions, or obligations arising under common law or international agreements which apply to Hong Kong.”

26.In respect of information held for, or provided by, a third party, the following is stated in Part 1 of the Code:

“1.20 Where information requested is held for, or was provided by, a third party under an explicit or implicit understanding that it would not be further disclosed, but a civil servant considers that the public interest may require disclosure, he will so advise the third party and invite the latter to consent to, or make representations against disclosure. The third party will be asked to respond within thirty days or such reasonable longer period as he may be granted on request.

1.21 On receipt of consent from the third party, the information may be disclosed.

1.22 If the third party makes representations against disclosure, or fails to respond within the stipulated time, a decision will be taken as to whether the information should be disclosed on the ground that the public interest in disclosure outweighs any harm or prejudice that would result. The third party will be advised of the decision.”

27.Part 2 of the Code relates to “Information Which May Be Refused”.  §2.1 states that: “A department may refuse to disclose information, or may refuse to confirm or deny the existence of information, in the categories and for the reasons set out below, which will normally be referred to if a request is refused”.  Two categories relevant for the present purpose are (i) “Third Party Information”, and (ii) “Privacy of the Individual”:

(1)  §2.14 of the Code concerning “Third Party Information” states as follows -

“(a) Information held for, or provided by, a third party under an explicit or implicit understanding that it would not be further disclosed. However, such information may be disclosed with the third party's consent, or if the public interest in disclosure outweighs any harm or prejudice that would result.”

(2)  §2.15 of the Code concerning “Privacy of the Individual” states as follows -

“Information about any person (including a deceased person) other than to the subject of the information, or other appropriate person, unless -

a. such disclosure is consistent with the purposes for which the information was collected, or

b. the subject of the information, or other appropriate person[3], has given consent to its disclosure, or

c. disclosure is authorised by law, or

d. the public interest in disclosure outweighs any harm or prejudice that would result.”

28.For the purpose of Part 2 of the Code, “harm” and “prejudice” include “both actual harm and prejudice and the risk or reasonable expectation of harm and prejudice.  In such cases, the department will consider whether the public interest in disclosure of the information outweighs any harm or prejudice that could result” (see §2.2 of the Code).

29.The Government has also issued a set of “Guidelines on Interpretation and Application” (“the Guidelines”) in respect of the Code to help government departments to interpret and apply the Code.  The following passages in the Guidelines are relevant for the purpose of the present discussion:

In relation to §§1.20 to 1.23 of Part 1 of the Code under the sub-heading “Third Party Information”

(1)  §1.20.1 and 1.23.1 -

“In the context of the Code, ‘third party’, in relation to any information other than ‘personal data’ as defined in the Personal Data (Privacy) Ordinance, means any individual or organisation other than -

(a) the Government; or

(b) the person who makes the request for access to information.

The term ‘third party’, in relation to ‘personal data’ as defined in section 2 of the Personal Data (Privacy) Ordinance (PDPO), means any person other than –

(a) the data subject;

(b) a ‘relevant person’[4] in the case of the data subject;

(c) the data user; or

(d)   a person authorized in writing by the data user to collect, hold, process or use the data - (i) under the direct control of the data user; or (ii) on behalf of the data user.”

In relation to §2.14 of Part 2 of the Code under the sub-heading “Third party information”

(2)  §1.20.2 and 1.23.2 -

“In circumstances where the case for maintaining the confidentiality of the third party information is clear and overwhelming, the request for access may be refused without consulting the third party.”

(3)  §2.14.3 -

“Care must always be taken in cases which involve third party information. Information is given to the Government in many different circumstances by persons, corporations and organisations on the explicit or implicit basis that such information, including its source, will be kept confidential. When the information includes data which is personal or commercially sensitive, the provisions of paragraph 2.15 of the Code (Privacy of the individual) … may also apply.”

(4)  §2.14.5 -

“Unless compelling public interest requires (see paragraph 2.14.10), where confidential information is supplied voluntarily it is not proper to disclose it without the consent of the supplier, or in some cases the third party for whom it was received by the Government.”

(5)  §2.14.6 -

“For information to be held in confidence it must be understood by both parties that it was held by or provided to the Government in confidence. It will not therefore be sufficient for the supplier of the information simply to claim confidentiality unless the Government also accepts that the information is held on this basis. This understanding may be explicit but often it will be implicit…”

(6)  §2.14.7 -

“The duty to hold information in confidence will often be implied where information is supplied or prepared for a particular purpose or sought by the Government, as opposed to where it is volunteered. It is obviously preferable that the basis upon which the information is held should be explicit at the time of supply or preparation, and forms, questionnaires, etc. used for the collection of information should therefore make this clear.”

(7)  §2.14.10 -

“There is no obligation to release information if such release would render the Government liable to an action for breach of confidence unless there is an overriding public interest in disclosure. Such cases will not be common and generally would involve circumstances such as where the information would reveal a risk to public health, public safety or to the environment. However, the public interest in disclosure must be compelling and clearly override the interest in preserving confidentiality. It would be unusual for the public interest in disclosure to be such that it would outweigh the harm of exposing the Government to liability to pay damages.”

In relation to §2.15 of Part 2 of the Code under the sub-heading “Privacy of the individual”

(8)  §2.15.1 -

“This provision is intended to protect the privacy of natural persons and does not apply to the affairs of unincorporated associations, corporations or other organisations but may prevent disclosure of whether any person is a member of any particular group or other type of association of persons.”

(9)  §2.15.2 -

“Information relating directly or indirectly to a living individual from which it is reasonably practicable to identify that individual may only be disclosed to a third party if permitted under the relevant provisions of the PDPO. Of particular relevance is Data Protection Principle 3 (use of personal data) set out in Schedule 1 to the PDPO: this principle provides that personal data may not, without the consent of the subject of the data, be used for any purpose other than the purpose for which the data was to be used at the time of collection, or a directly related purpose. It should be noted that as far as personal data is concerned, whether it is in the public domain or not is irrelevant to the consideration of release.”

(10)  §2.15.6 -

“The restriction on disclosing information to third parties does not apply to information concerning an individual from which it is not reasonably practicable to identify that individual. For example, statistical data that has been anonymised and from which it is not reasonably practicable to ascertain or deduce the identity of a particular individual.”

(11)  §2.15.8 -

“This provision is not limited to information provided on an explicit or implicit basis of confidentiality. In order to determine whether information of whatever classification that identifies an individual may be disclosed to a third party, the guidance set out above should be followed.”

(iii)    The Personal Data (Privacy) Ordinance, Cap 486

30.The PDPO is expressly made binding on the Government (see s 3 thereof).  For the purpose of the PDPO, “personal data” is defined in s 2(1) thereof to mean any data -

(a)  relating directly or indirectly to a living individual;

(b)  from which it is practicable for the identity of the individual to be directly or indirectly ascertained; and

(c)  in a form in which access to or processing of the data is practicable.

31.Under s 4 of the PDPO: “A data user shall not do an act, or engage in a practice, that contravenes a data protection principle unless the act or practice, as the case may be, is required or permitted under this Ordinance.”

32.Principle 3(1) of the data protection principle (“DPP”) set out in Schedule 1 to the PDPO states as follows: “Personal data shall not, without the prescribed consent of the data subject, be used for a new purpose”.  In relation to the use of personal data, a “new purpose” is defined to mean any purpose other than - (a) the purpose for which the data was to be used at the time of the collection of the data; or (b) a purpose directly related to the purpose referred to in (a) (see DPP 3(4)).

33.In passing, I should mention that the parties have not suggested that any of the “Exemptions” set out in Part 8 of the PDPO is relevant to the present case.

GROUND (1): ERRORS OF LAW

34.In the Form 86, the Applicant argues that EDB made 5 errors of law in the Final Decision.

35.In Mr Douglas Lam, SC’s Skeleton Submissions dated 10 May 2021 on behalf of the Applicant, he has grouped them into 3 main complaints under the following headings:

(1)  “Withheld Information ‘held for, or provided’ by third parties” (“the 1^st and 2^nd Alleged Errors of Law”);

(2)  “Purposes of seeking information/disclosure / PDPO DPP3” (“the 3^rd and 4^th Alleged Errors of Law”); and

(3)  “Breach of confidence?” (“the 5^th Alleged Error of Law”).

In what follows, I shall consider these 5 alleged errors of law in the same order in which they are analysed in Mr Lam’s Skeleton Submissions.

(i)  1^st and 2^nd Alleged Errors of Law - Withheld Information “held for, or provided” by third parties

36.Under this ground of complaint, Mr Lam argues that[5]:

(1)  EDB misdirected itself in proceeding on the basis of a blanket approach in considering that the Withheld Information, as a whole, falls within the definition of “held for, or provided by, a third party”.

(2)  EDB ought to have identified, first, which part of the Withheld Information falls within the definition and then, secondly, identifying and disclosing the part which does not fall within the definition.

(3)  Further or alternatively, so far as the Applicant is seeking to disclose EDB’s own decision in each case, it is difficult to see how this is information “held for, or provided by, a third party”.  A distinction has to be drawn between information considered by EDB before reaching the conclusion and EDB’s own conclusion in each case.

(4)  This (it is said) is reinforced by EDB’s inability to pinpoint the precise identity of the “third party” in this context, when it is merely said (at §23 of the Affirmation of Lee Wai Ping) that “the Withheld Information … constitutes information held for, or provided, by third parties, namely, the complainants, the schools involved and/or the teachers involved, within the meaning stipulated by paragraph 2.14 of the Code”.

(5)  In any event, EDB clearly erred in failing to properly apply the balancing exercise, which (properly applied) would be in favour of disclosure rather than withholding the same.

37.Leaving aside for the moment §36(5) above which I shall consider under Ground 2 (irrationality) below, Mr Lam’s argument, effectively, is that EDB ought to have dissected the Withheld Information and disclosed such part or parts of the Withheld Information which was not information “held for, or provided by a third party under an explicit or implicit understanding that it would not be further disclosed” within the meaning of §2.14(a) of the Code.  In order to consider the validity of this argument, it is necessary to examine a little more closely the nature and sources of the Withheld Information.

38.As stated in §9 of the Form 86, the Withheld Information refers to “the names of the schools and the teachers involved and the findings and results of the investigation in the substantiated cases”.  At §16 of the Form 86, the Applicant further states that the Request, as properly understood, was a request for (i) the names of the teachers who the EDB had found to have committed professional misconduct; (ii) the schools involved; and (iii) the nature of the professional conduct found by the EDB (referred to in the Form 86 as “the 3 Information Items”).  For each substantiated case:

(1)  The 1^st item (ie the name of the teacher involved) would be information provided either by the complainant or, where the complainant only named the school involved but not the teacher concerned, by the school based on information provided by the complainant (see §7 above).

(2)  Likewise, the 2^nd item (ie the name of the school involved) would be either information provided by the complainant or, where the complainant only named the teacher involved but not the school concerned, based on information provided by the complainant (see §7 above).

(3)  The 3^rd item (ie the nature of the professional conduct found by the EDB) would consist of a combination of (a) information provided by the complainant, teacher and/or school involved, and (b) EDB’s analysis based on such information.  This item, as I understand it, is what Mr Lam refers to as “the Putative Respondent’s own decision” in §25(3) of his Skeleton Submissions.

39.The complainants, teachers and schools involved were “third parties” for the purpose of the application of §2.14(a) of the Code to the Applicant’s Request in this case[6]. Even if there was no explicit request for, or understanding of, confidentiality, I consider it to be clear that the relevant information, relating to matters of personnel, professional misconduct and discipline, was provided by them under an implicit understanding that it would not be further disclosed to any third party outside the complaint/disciplinary process[7].  Any other view would have serious implications on the readiness or willingness of a complainant to make a complaint to EDB against a teacher, the school concerned to provide information to assist EDB in its investigation of the complaint, and the teacher involved to provide information to EDB in response to the complaint.

40.I do not consider that EDB made any error of law in treating the Withheld Information as a whole when considering whether to disclose it to the Applicant pursuant to the Request.  Whether EDB ought to have considered the Withheld Information as a whole or looked at the individual components making up the Withheld Information separately depended on the actual Request that was made by the Applicant and the purpose for which the Applicant sought the information.

41.By SFKS’s letters of 4 February 2020 and 15 May 2020, the Applicant asked EDB to disclose information relating to the substantiated cases of professional misconduct of teachers for the avowed purpose of enabling parents of local students (hereinafter referred to as “the Hypothetical Parents”) to make an informed decision on whether their children should study or continue to study in a particular school.  For the purpose of the present discussion, I shall assume, in the Applicant’s favour, that some such parents exist in the society.  Having regard to the Applicant’s purpose for seeking the information, it must be obvious that the most significant item of information that the Applicant was after would be the names of the teachers who had been found guilty of professional misconduct by EDB, followed by the names of the schools involved.  This is because being given the Withheld Information without the names of the teachers and schools involved would be of no assistance to the Hypothetical Parents to decide whether their children should study or continue to study in a particular school.  Being informed additionally of the names of the schools (but not the names of the teachers) involved may be of some assistance to the Hypothetical Parents, but the utility of such additional information is limited by the fact that the teachers concerned, so long as they remain registered under the EO, are at liberty to move to some other schools to continue teaching.  On the other hand, it would plainly be unreasonable for EDB to disclose the Withheld Information, including the names of the schools but omitting the names of the teachers involved, because such limited disclosure would be wholly unfair on the rest of the teachers and the students of those schools and could seriously affect the teaching environment in those schools.

42.It is relevant that in neither of SFKS’s two letters dated 4 February 2020 and 15 May 2020 did the Applicant suggest that it was content to receive only a part of the Withheld Information, or that EDB should make a partial disclosure of the Withheld Information omitting information which was “held for, or provided by a third party under an explicit or implicit understanding that it would not be further disclosed” within the meaning of §2.14(a) of the Code.

43.In my view, it was reasonable of EDB to treat the 3 Information Items as a whole when deciding whether to accede to the Applicant’s Request for disclosure of the Withheld Information.  To consider them separately or individually in the context of the Request would be an artificial and meaningless exercise.

44.In any event, if EDB were to dissect the Withheld Information and disclose only such part or parts of the Withheld Information falling outside the scope of §2.14(a) of the Code, it seems to me that all 3 Information Items would fall within the scope of §2.14(a) of the Code:

(1)  The 1^st and 2^nd items (ie the names of the teachers and schools involved) would plainly be information provided, or based on information provided, by the complainants, teachers and/or schools involved.

(2)  In respect of the 3^rd item (ie the nature of the professional misconduct found by EDB), as earlier mentioned, it would consist of a combination of (a) information provided by the complainants, teachers and/or schools involved, and (b) EDB’s analysis based on such information.  The former would fall within the scope of §2.14(a) of the Code. In respect of the latter, I am unable to see how it would be meaningful or useful for it to be disclosed to the Applicant without the former.  In any event, such limited disclosure of information (omitting, inter alia, the names of the teachers and schools involved) would, in substance, be nothing more than a general discourse on what sort of acts or words by a teacher would constitute professional misconduct, and would be of no utility to the Hypothetical Parents for deciding whether to allow or permit their children to study or continue to study in a particular school.  Even if (contrary to my view) EDB ought to have disclosed the nature of the professional misconduct found by EDB in the substantiated cases but omitting the names of the teachers and schools involved, I do not consider that the court should exercise its discretion to grant any relief in the present application for judicial review where such limited disclosure will serve no useful purpose to the Applicant.

45.For the same reasons, I reject Mr Lam’s argument that EDB ought to draw a distinction between (i) information considered by EDB before reaching its conclusion, and (ii) EDB’s own conclusion, and disclose its “own decision” in each case.

46.In passing, I should mention that in the Form 86 (at §21), but not in Mr Lam’s Skeleton Submissions, it is argued that EDB ought to have made prior inquiry with any “third party” within the meaning of §2.14(a) of the Code to ascertain that he/she would not have consented to the disclosure of the relevant information.  However, as stated in §1.20.2 and 1.23.2 of the Guidelines, in circumstances where the case for maintaining the confidentiality of the third party information is clear and overwhelming, the request for access may be refused without consulting the third party.  Ms Lee Wai Ping has confirmed that this was the view taken by EDB[8], a view which I consider was open to EDB to take on the facts of the present case.  In any event, since the Applicant never requested EDB to seek the consent of the complainants, or teachers or schools involved to the disclosure of the Withheld Information in any specific cases or generally, I do not consider it is open to the Applicant to argue, in the present application, that EDB erred in failing to seek such consent.  This argument also runs counter to the Applicant’s general position that EDB ought to have disclosed the Withheld Information in the public interest, regardless of whether disclosure is consented to by the complainants, or teachers or schools involved.

(ii)     3^rd and 4^th Alleged Errors of Law - Purposes of seeking information/disclosure / PDPO DPP3

47.Under this ground of complaint, Mr Lam makes 3 principal points.

48.First, Mr Lam fastens upon the following passage in EDB’s letter of 25 March 2020 to SFKS (namely, “Such ‘personal data’ were collected by EDB for the purpose of investigating suspected misconduct cases (‘the original purpose’).  On the other hand, we are informed that your client’s request is made for the purpose of enabling ‘members of the public, particularly parents of local students, … to make an informed decision as to whether their children shall study or continue to study in a particular school’ (‘the intended purpose’).  It does not appear to us that the intended purpose falls within the original purpose or a purpose directly related to the original purpose”) (underlining added), and argues that the use of the words “does not appear” shows that that EDB had not reached any definitive view on the Applicant’s purpose of seeking the information.  From this, Mr Lam argues that it was “impermissible for the Putative Respondent to jump from this subjective impression to the conclusion that the Applicant was intending to use the information for objectively impermissible purposes”[9] [underlining original].  This argument is, in my view, a semantic one.  The Applicant’s intention to use the Withheld Information for the purpose of assisting the Hypothetical Parents to decide whether their children should study or continue to study in a particular school (“the Applicant’s Purpose”) was clearly stated in SFKS’s letters of 4 February 2020 and 15 May 2020.  On the other hand, EDB’s purpose of collecting the relevant information from the complainants, parents or schools involved was for the investigation of cases of suspected professional misconduct of teachers and consideration of the appropriate follow up actions (if any) to be taken by EDB against the teachers concerned after completion of the investigation[10] (“EDB’s Purpose”).  Subject to the argument as to whether the Withheld Information constitutes “personal data” within the meaning of the PDPO (which I shall deal with below), it is, in my view, clear that the Applicant’s Purpose is a “new purpose” within the meaning of DPP 3(4), ie one other than (i) EDB’s Purpose, or (ii) a purpose directly related to EDB’s Purpose.  EDB’s view that the Applicant’s Purpose “does not appear” to fall within the original purpose or a purpose directly related to the original purpose is correct.  The use of the words “does not appear” was a mere matter of expression, and did not indicate that EDB had not reached a definitive view, or was unsure about, the purpose for which Applicant intended to use the Withheld Information.

49.Second, Mr Lam argues that:

(1)  According to EDB, the “purpose of collecting information is to enable the PS(Ed) to consider the appropriate follow up actions, if any, regarding [the teacher’s] alleged misconduct”.  This, it is said, is part and parcel of EDB’s role and “responsibility to monitor the quality of school education”.

(2)  On the other hand, the Applicant’s purpose for seeking the disclosure of information is, according to EDB’s own analysis, for “enabling members of the public, particularly parents of local schools … to make an informed decision as to whether their children shall study or continue to study in a particular school”.

(3)  Thus, having regard to the proper context, the purpose for disclosure must be consistent with the purpose for collecting the information in the first place.

(4)  It could not have been the reasonable expectation of teachers who have committed misconduct to remain anonymous.  Neither could there be a reasonable expectation of privacy on the part of those teachers where the loss of reputation is a foreseeable consequence of one’s own actions[11].

50.This argument is a misplaced one.  EDB made the decision to refuse to disclose the Withheld Information because (inter alia) the disclosure of the Withheld Information to the Applicant would be a use of the information (personal data) for a “new purpose” contrary to by DPP 3(1).  Under DPP 3(4), a purpose is a “new purpose” if it is not the same as the original purpose for which the data was to be used at the time of collection of the data, or a “purpose directly related to” the original purpose.  In my view, it is plain that the Applicant’s Purpose is a “new purpose” because it is not the same as EDB’s Purpose, nor is it directly related to EDB’s Purpose.  The question of whether it could have been the reasonable expectation of teachers who have committed misconduct to remain anonymous, or whether there could be a reasonable expectation of privacy on the part of those teachers is not relevant to the determination of whether the Applicant’s Purpose is a new purpose.

51.Third, Mr Lam argues that under s 2 of the PDPO, “personal data” is defined to mean data from which “it is practicable for the identity of the individual to be directly or indirectly ascertained”. However, the disclosure of the name of the school involved and the nature of the misconduct and penalty imposed cannot lead to the identification of the teacher concerned.  Such information is, therefore, not “personal data” protected from disclosure under the PDPO[12]. My views on this argument are as follows:

(1)  As earlier mentioned, I consider that the 3 Information Items ought to be looked at as a whole in the context of the Request.  There cannot be any serious dispute that if EDB were to disclose all 3 Information Items together to the Applicant, there would be a breach of DPP 3(1).

(2)  I accept that the disclosure of the name of the school involved and the nature of the misconduct and penalty imposed per se may not[13] lead to the identification of the teacher concerned.  Hence, such information may not be “personal data” within the meaning of the PDPO.  However -

(a)  EDB’s refusal to disclose the name of the school involved and the nature of the misconduct was justifiable under §2.14(a) of the Code.

(b)  It would be unreasonable for EDB to disclose just the name of the school involved and the nature of the misconduct and penalty imposed, but omitted the name of the teacher concerned, because such limited disclosure would be wholly unfair on the rest of the teachers and the students of that school and could seriously affect the teaching environment in those schools.

(c)  For the reasons given in §44(2) above, the court should, in any event, decline to exercise its discretion to grant relief in this application for judicial review if the only valid complaint against EDB is that it failed unjustifiably to disclose the nature of the misconduct and penalty imposed.

52.In all, I reject Mr Lam’s argument that EDB made the 3^rd or 4^th Alleged Errors of Law in the Final Decision.

(iii)    5^th Alleged Error of Law - Breach of Confidence?

53.In his Skeleton Submissions, Mr Lam says that although, in the Final Decision, EDB apparently relied on the possible exposure of “the Government to liability for breach of confidence”, this matter no longer appears to be relied upon in the evidence filed by EDB, and thus this ground would not be further addressed[14]. Since I have reached the clear conclusion that EDB was fully justified to refuse to disclose the Withheld Information to the Applicant by reason of the “Fairness”, “Adverse Impacts” and “Trust and Confidence” Grounds, I do not consider it necessary to consider the possible exposure of the Government to liability for breach of confidence as additional ground in support of the Final Decision.

GROUND (2): IRRATIONALITY

54.Subject to Wednesbury challenge, the question of whether more harm or prejudice than benefit would result from the disclosure of the Withheld Information is a matter for EDB to consider.  The threshold for judicial review on the ground of Wednesbury unreasonableness is a high one, particularly in relation to a decision based on the weighing of conflicting public interests.  There is not a simple, right or wrong, answer to the question of whether more harm or prejudice than benefit would result from the disclosure of the Withheld Information to the Applicant.  The answer to such question is a matter of judgment and depends on a host of public policy considerations which fall within the province of EDB.  EDB is in a much better position than the court to judge whether the harm or prejudice that would result from the disclosure of the Withheld Information would outweigh any benefit from such disclosure.  In my view, EDB’s decision to refuse to disclose the Withheld Information is well within the boundary of Wednesbury reasonableness, and is one which I consider to be entirely reasonable in the circumstances.

55.I shall now deal with a number of points raised by Mr Lam in support of the argument that the Final Decision is irrational.

56.First, Mr Lam argues that EDB gave undue weight to one-sided considerations[15]. This complaint is unjustified.  It is clear from the Initial Decision and Final Decision that EDB took into account the Applicant’s contention that the disclosure of the Withheld Information would be in the public interest, including the suggestion that it would assist the Hypothetical Parents to make an informed decision on whether their children should study or continue to study in a particular school, and balanced the suggested public interest in disclosure against other countervailing considerations before coming to the conclusion that the Withheld Information should not be disclosed.

57.Second, Mr Lam argues that EDB has overlooked the “general rule of open justice… that parties should be named in the judgments”[16]. This complaint is based on a conflation of legal proceedings and disciplinary process.  The authorities referred to by Mr Lam in §32(2)(b), (c) and (d) of his Skeleton Submissions (namely, X & Y v Z [2020] HKCFI 826; Good Law Project Ltd v HMRC [2019] EWHC 3124 (Admin), and Value Convergence Holdings Ltd v Zhou Quan Co Ltd [2019] HKCFI 1631) all relate to legal proceedings where the principle of open administration of justice is well established, while the case referred to in §32(2)(e) of his Skeleton Submissions (namely, R (Privacy International and Others) v Revenue & Customers Commissioners [2015] 1 WLR 397) relates to the scope of HMRC’s margin of discretion in the exercise of its power of disclosure of information held by it in connection with a function of the Revenue and Customs under s 18(2) of the Commissioners for Revenue and Customs Act 2005.  On the other hand, the present case relates to disciplinary process against registered teachers.  There is no general principle that disciplinary proceedings must be open to the public.  In the present case, there are good reasons given by EDB in the Final Decision why the Withheld Information should not be disclosed to unrelated parties like the Applicant.

58.Third, Mr Lam argues that EDB has failed to consider or give sufficient weight to various alleged “negative impacts” which may result from the non-disclosure of the Withheld Information[17], or “possible multi-faceted beneficial effects of the disclosure”[18].  It is not with disrespect to Mr Lam that I do not propose to examine the validity or cogency of those matters individually in this judgment, because such examination would turn the present application into an impermissible merits review of EDB’s decision.  In my view, each of the “Fairness”, “Adverse Impacts” and “Trust and Confidence” Grounds relied upon by EDB in making the Decision is a weighty ground against disclosure of the Withheld Information when balanced against any or all of the matters now relied on by the Applicant.  Overall, EDB’s decision is well within the range of reasonableness in the public law sense.

59.Lastly, Mr Lam argues that EDB has admitted the need for “improved transparency” in the handling of misconduct cases of teachers[19]. For the purpose of this argument, Mr Lam relies on a LC Paper No CB(4)924/20-21(01) titled “Teachers’ Professional Conduct” (“the Paper”) prepared by EDB for discussion by the Legislative Council Panel on Education at a meeting scheduled for 7 May 2021, which the Applicant seeks to adduce as evidence by its summons dated 11 May 2020.

60.The aim of the Paper, as stated in its first un-numbered paragraph, is to brief the Members of the Panel on the progress of the handling of complaints about suspected professional misconduct by teachers arising out of the Bill by EDB and the recommendations on further upholding the professionalism of teachers.  The Paper states, inter alia, as follows:

“Cases of professional misconduct

5 Since June 2019, the social turmoil has brought unprecedented impact on and challenges to the whole society including the education sector. The words and deeds of some teachers have aroused grave concerns and worries among people from all walks of life. From mid-June 2019 to end of December 2020, the EDB received a total of 269 related complaints about professional misconduct of teachers. We have broadly completed the investigation of 259 cases, of which 99 are unsubstantiated. Regarding the substantiated cases, as at end of April 2021, we have cancelled three teachers’ registration according to the Education Ordinance and issued reprimand and warning letters to 42 and 43 teachers respectively, warning them that cancellation of teacher registration would be considered should they misconduct again. We have also issued advisory letters to 35 teachers and verbal reminders to 31 teachers, reminding them to refrain from activities that are detrimental to the image of the teaching profession, and to show respect to the behavioural norms acceptable to society. Also, among the cases that are initially substantiated, we are currently waiting for or considering the responses from the teachers of 17 cases. We will determine the appropriate follow-up actions in due course. There are 10 cases under investigation, including 8 cases which involve legal proceedings. Upon completion of the relevant procedures, we will consider their teacher registrations.

6 On the other hand, as at end of April 2021, three teachers were convicted for participation in unlawful activities relating to the social turmoil. Among these cases, we have cancelled the registration of one teacher in April this year and the other two teachers were summarily dismissed by their schools. We are studying the court documents and will consider their teacher registration when all legal proceedings are completed. Also, six teachers are being prosecuted for suspected serious offence. They have already been suspended from normal duties by their schools. We will continue to keep in view information from the court and actively follow up on these cases. In addition, four persons who claimed to be teachers are convicted. However, they are not registered teachers according to the EDB’s record. As for other cases that the teachers have not been charged (or not yet been charged for the time being), we will continue to take note of the information from the court.

7 Apart from cases as mentioned above, the EDB also handles cases of teachers’ violation of the law and professional misconduct, such as improper physical contact with students, inappropriate teacher-student relationship, corporal punishment, shop theft, dangerous driving, etc. Over the past two years (from January 2019 to April 2021), apart from the cases relating to the social turmoil as mentioned in paragraphs 5 and 6 above, there were 12 teachers whose registrations were cancelled or applications for teacher registration were refused. We have also issued reprimand letters to six teachers, warning letters to 41 teachers and advisory letters to 16 teachers. The numbers of follow-up actions taken by the EDB (including those related to the social turmoil) over the past two years are detailed at Appendix 2.”

61.At §12 of the Paper, it is mentioned that the professional misconduct cases handled over the past two years are broadly related to the following categories (with details set out in §§13-18 of the Paper): (i) inappropriate teaching materials, (ii) posting inappropriate messages on social media, and (iii) disorderly conduct.  Further information about some “Examples of Professional Misconduct of Teachers and Follow-up Actions Taken by the Education Bureau” are given in Appendix 3 to the Paper concerning (i) cases involving teacher contents, (ii) cases involving foul language, (iii) cases involving hate and insulting remarks, (iv) cases of inappropriate words and deeds which encourage students to participate in political activities, (v) cases of inappropriate words and deeds and contact with students, and (vi) cases of other unlawful or inappropriate acts.  For the purpose of this judgment, it is not necessary to set out the details of those cases as mentioned in the said Appendix 3, suffice it to point out that the names of the teachers and schools involved are not given in Appendix 3.

62.At §24 of the Paper, EDB sets out certain proposed measures to enhance the transparency of its handling of cases of misconduct of teachers, as follows:

“To enhance the transparency in the handling of misconduct cases, the EDB plans to release the numbers of completed cases and cases being followed up on a regular basis. We will also provide examples of cases to illustrate the penalties on misconducted teachers and the considerations involved for general information of the public and reference of schools. This can help schools strengthen the management of teachers, enhance the sensitivity of teachers on their words and deeds, and enhance their sensitivities in law-abiding.”

63.As earlier mentioned, the crux of the present case concerns the disclosure of the names of the teachers and schools involved in the substantiated professional misconduct cases.  EDB’s stance on this issue has been consistent throughout, as shown by the fact the names of the teachers and schools involved are not disclosed in the Paper.  I do not consider that the information now disclosed by EDB in the Paper demonstrates or supports the argument that the Final Decision is irrational.

GROUND (3): FETTERING OF DISCRETION

64.This ground can be dealt with briefly.  The principles about fettering of discretion are well settled and do not have to be repeated here.  Mr Lam argues that EDB adopted a blanket prohibition against disclosure of the Withheld Information in respect of all professional misconduct cases, which fails to distinguish:

(1)  the seriousness of the misconduct in each case;

(2)  the severity of the impact of such misconduct on the schools, the students and on the quality of the education generally;

(3)  the interests of those who might benefit from the disclosure;

(4)  the potential burdens imposed on the relevant teachers and/or schools from the disclosure in each case; and

(5)  other individual and particular circumstances of each case[20].

65.I do not accept the complaint that EDB unlawfully fettered its discretion in making the Decision, for the following reasons:

(1)  This is not a case where the Applicant requested EDB to disclose the Withheld Information in respect of some particular cases on the ground that the specific facts and circumstances of those cases would justify a departure from a general policy of non-disclosure.  On the contrary, this is a case where the Applicant requested EDB to disclose the Withheld Information generally for all substantiated misconduct cases, and EDB refused such request on the grounds mentioned in its letter of 3 July 2020.

(2)  For each substantiated professional misconduct case, EDB had already carried out an assessment of the particular facts and circumstances of that case (including the severity of the relevant misconduct) and considered whether the teacher involved should be de-registered, or was still fit to teach in a registered school but required some “correction / improvement”.  The Request was for information in respect of the latter type of cases[21], and EDB decided that the Withheld Information should not be disclosed for the reasons given in its letter of 3 July 2020.

(3)  The rest of the matters relied upon by Mr Lam (eg the interests of those who might benefit from the disclosure, and the potential burdens imposed on the relevant teachers and/or schools from the disclosure) go to the issue of rationality of the Decision, which I have already dealt with under Ground (2) above.

66.In conclusion, all 3 grounds of judicial review relied upon by the Applicant in support of the present application are rejected.

DISPOSITION

67.The Applicant’s summons dated 11 May 2021 is dismissed on the ground that the evidence proposed to be adduced is not relevant or sufficiently relevant to the issues raised for determination in the present application to justify its admission.

68.Leave to apply for judicial review is granted on the basis that the intended application for judicial review of the Decision is reasonably arguable with a realistic prospect of success.  The substantive application for judicial review is dismissed upon a full consideration of the merits.  Having regard to the fact that the Applicant made the present application not for its own private interest but apparently to advance public interest and the view that I have formed that the intended application for judicial review is reasonably arguable, I make no order as to the costs of this application (including the costs of the Applicant’s summons dated 11 May 2021 and all costs reserved, if any).

Mr Douglas Lam, SC & Mr Michael Lok, instructed by Sit, Fung, Kwong & Shum, for the Applicant

Mr William Liu, DLO (Civil Law) (Ag.) and Ms Carmen Siu, Senior Government Counsel of Department of Justice, for the Putative Respondent

[1] See §11 of the Affirmation of Lee Wai Ping filed on 29 January 2021.

[2] See 803 Funds Ltd v Director of Buildings [2021] HKCFI 1471, at §§34-35.

[3] For the purpose of this paragraph, “appropriate person”, in relation to a living individual, means a “relevant person” as defined in ss 2 and 17A of the PDPO (see §2.15.9 of the Guidelines).

[4] The definition of the expression “relevant person” is not relevant for the purpose of the present application and will not be further discussed in this judgment.

[5] See §25 of the Applicant’s Skeleton Submissions.

[6] See §1.20.1 and 1.23.1 of the Guidelines.

[7] See Taylor v Director of Serious Fraud Office [1999] 2 AC 177, at 198B-C per Millet LJ, and 211B-D per Lord Hoffmann; and §§2.14.3, 2.14.6 and 2.14.7 of the Guidelines.

[8] See §37 of the Affirmation of Lee Wai Ping.

[9] See §26(1) to (5) of the Applicant’s Skeleton Submissions.

[10] See §14 of the Affirmation of Lee Wai Ping.

[11] See §26(6) of the Applicant’s Skeleton Submissions.

[12] See §27 of the Applicant’s Skeleton Submissions.

[13] Whether it is practicable for the identity of the teacher to be directly or indirectly ascertained would depend on the means and/or information available to a third party to make the identification (see Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529, at §§171-177).

[14] See §28 of the Applicant’s Skeleton Submissions.

[15] See §32(1) of the Applicant’s Skeleton Submissions.

[16] See §32(2) of the Applicant’s Skeleton Submissions.

[17] See §32(3) of the Applicant’s Skeleton Submissions.

[18] See §32(4) of the Applicant’s Skeleton Submissions.

[19] See §32(5) of the Applicant’s Skeleton Submissions.

[20] See §36 of the Applicant’s Skeleton Submissions.

[21] In SFKS’s letter of 15 May 2020 requesting a review of the Initial Decision, it was stated that: “The concern is not about de-registered teachers.  It is about those who are the subjects of substantiated complaints and who are still allowed to teach.”