黃愷瀛 v. 香港特別行政區教育局
Read the full judgment text of HCAL 1275/2021 on BabelCite. This High Court CFI judgment was delivered on 17 December 2021.
1. In October 2020, the Applicant was elected for nomination as the ‘alternate parent manager’, one of the Managers for the Incorporated Management Committee (“IMC”) of the Mary Rose School (“School”) for the 2020/2021 school year. The first meeting she might have attended was on 23 November 2020 (“First Meeting”), but the process of her registration as a Manager was not completed by that date, and the Applicant was therefore not invited to attend the First Meeting, or even to sit in. This giv
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HCAL 1275/2021 [2021] HKCFI 3688 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1275 OF 2021 ________________________
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______________ D E C I S I O N ______________ A. Introduction 1.In October 2020, the Applicant was elected for nomination as the ‘alternate parent manager’, one of the Managers for the Incorporated Management Committee (“IMC”) of the Mary Rose School (“School”) for the 2020/2021 school year. The first meeting she might have attended was on 23 November 2020 (“First Meeting”), but the process of her registration as a Manager was not completed by that date, and the Applicant was therefore not invited to attend the First Meeting, or even to sit in. This gives rise to her first area of complaint. 2.As it happens, one of the matters dealt with at the First Meeting was to ask all Managers to sign an approved form of Non-Disclosure Agreement (“NDA”). The Applicant was formally registered as ‘alternate parent manager’ on 9 December 2020. The second meeting of the IMC was on 15 March 2021 (“Second Meeting”), but the Applicant failed or refused to sign the NDA prior to that meeting, and so was not permitted to participate in the meeting, and was not provided with management materials after that, or notified of the third meeting. This gives rise to her second area of complaint. 3.The NDA is connected to Clause 18.5 (“Confidentiality Clause”) in the School’s IMC Constitution, which was approved by the putative respondent (“EDB”) on 26 June 2015, after consideration under section 75A of the Education Regulations Cap 279A (“ER”). This gives rise to her third area of complaint. 4.The Applicant’s Form 86 seeking leave to apply for judicial review was issued on 10 September 2021. It was supported by the Applicant’s affirmation of the same date. On 21 September 2021, I directed that there should be a ‘rolled-up’ hearing of (1) any relevant application for an extension of time, (2) the application for leave to apply for judicial review, and (3) the substantive application for judicial review. I also gave directions for the filing of evidence by the EDB, and by the Applicant in reply. 5.Bearing in mind the nature of the complaints – see, in more detail, below – the materials were served on the IMC as potential interested party. However, the IMC has taken no part in these proceedings. 6.The ‘rolled-up’ hearing was heard by me on 6 December 2021. The Applicant appeared in person, and the EDB was represented by Mr Gilbert Mok, Senior Government Counsel (Ag.). At the end of the hearing, I reserved my decision. This is my Judgment. B. The Formal Intended Challenge 7.By her Form 86, the Applicant seeks to challenge by way of judicial review:
8.However, in her reply affirmation, the Applicant’s focus somewhat shifted, and was more on the failure of the EDB to take action against the IMC in relation to her failure to attend the three meetings of the IMC for the 2020/2021 school year. Despite the EDB’s suggestion that the real ‘target’ for her complaints should be the IMC, the Applicant has expressly chosen to maintain her challenge directed at the EDB alone. C. Overview of EDB’s Response 9.The EDB opposes leave to apply for judicial review, and any substantive application, on the following broad grounds:
D. Amenability to Review 10.On the two issues relating to the Registration and Confidentiality Issues, the Applicant relies upon five emails and letters sent by the EDB, being:
11.The email of 18 February 2021 was EDB’s reply to the Applicant’s email of 1 February 2021. The EDB addressed the two issues raised by the Applicant, being (a) following up an earlier questionnaire issue to the School, copied to the EDB, regarding the First Meeting, and (b) whether she was required to sign the NDA. As to the First Meeting, the EDB pointed to section 27 of the EO, which provides that no person shall act as a manager of a school unless he is registered as a manager of the school, and that would include attending meetings of IMCs in the capacity of a manager. As to the NDA, the EDB referred to the School Managers’ Handbook explaining the need for confidentiality, and that IMCs are encouraged to develop school-based codes of ethics for managers with content and implementation details to be decided by each IMC, including confidentiality arrangements. I agree with Mr Mok that there is no decision made by the EDB demonstrated in that email. 12.The email of 15 March 2021 was EDB’s reply to the Applicant’s email of 19 February 2021, making further enquiry on section 27 of the EO. The EDB explained that an IMC may invite a Manager-Nominate to sit in on a meeting, but the person sitting in would have no voting rights not be counted for the purpose of establishing a quorum. I agree with Mr Mok that no decision made by the EDB is demonstrated in that email. 13.The letter of 24 May 2021 was the EDB’s response to the Applicant’s complaint made to the Ombudsman. On the registration issue, the EDB repeated its views in line with the two previous emails, and sought to explain how the position was not inconsistent with the materials referred to by the Applicant in her complaint. On the confidentiality issue, the EDB stated that the CEO and the Constitution of the School’s IMC set out the framework for the operation of the IMC, which the School should follow. It was further stated that, subject to the EO and the Constitution, the IMC may develop school-based meeting norms or protocols, including confidentiality arrangements. The EDB further pointed out that confidentiality provisions are not a prescribed item for an IMC’s Constitution under section 75A of the ER. I agree with Mr Mok that no decision made by the EDB is demonstrated in that email. 14.The letter of 6 July 2021 was the EDB’s second letter to the Applicant relating to her complaint to the Ombudsman. It largely repeated the matters dealt with in the previous email, but added that the School had provided information that the requirement for an NDA was approved in the First Meeting and effective only after that meeting. I agree with Mr Mok that no decision made by the EDB is demonstrated in that email. 15.The letter of 17 August 2021 was the EDB’s letter to the Public Complaints Office of the Legislative Council, in response to the Applicant’s complaint made to that body in July. The letter simply reiterated the EDB’s views on the various matters, in line with its previous emails and letters. I agree with Mr Mok that no decision made by the EDB is demonstrated in that email. 16.Hence, I accept Mr Mok’s submissions that (a) in the various correspondence, the EDB set out the facts, explained the statutory requirements, policies and guidelines, and answered the Applicant’s queries and complaints, and (b) the EDB was not the decision-maker of any of the following:
17.Therefore, nothing in the correspondence amounts to a decision amenable to judicial review. None of the correspondence altered the rights or obligations of the Applicant, nor did it deprive her of some benefit for advantage. 18.As the actions of the EDB the subject of the complaint are not amenable to judicial review, the leave application relating to that correspondence – namely the first two areas of complaint – falls to be dismissed. E. Delay 19.Mr Mok submits that delay in making the leave application relating to the Approval of Constitution Issue should lead to the dismissal of that part of the leave application. The period of delay was very long, being almost 6 years out of time, and the offered explanation for delay – namely the time required to study the relevant government guidelines, statutes and cases – is not a good reason for extending time. Further, the Applicant is no longer a Manager of the School, so any prejudice to her is low, and no question of general public importance is involved. 20.I agree. The Constitution was approved in 2015, during the time that the Applicant herself was a committee member of the Parents’ Association of the School. In all the circumstances, it seems to me that the significant delay of itself leads to the dismissal of the leave application insofar as it seeks to challenge the approval of the School’s Constitution. 21.Mr Mok also suggests that complaints relating to some of the earlier correspondence (in February, March and May 2021) on the Registration and Confidentiality Issues should also lead to dismissal of the leave application respect of that correspondence. However, in the overall circumstances, I would not have refused leave simply on the basis of delay in that regard. 22.However, for the reasons relating to amenability and delay combined, they are sufficient to lead to the dismissal of the Applicant’s application for leave to apply for judicial review on all matters identified by her in her Form 86. Nevertheless, I will also go on to deal with the merits of the complaints. F. Registration Issue 23.Section 27 of the EO, headed ‘Managers of schools to be registered’, provides:
24.Section 29(1) of the EO, headed ‘Registration of manager’, provides as follows:
25.The Applicant argues that section 27 of the EO should be interpreted in such a way that the School or IMC should allow a person nominated as Manager to attend or sit in on an IMC meeting, as soon as that person has been nominated and irrespective of whether he or she has been registered under section 29(1). 26.In light of the fact that she was nominated to be the alternate parent manager, the Applicant also relies upon the definition of “alternate parent manager” found in section 40AB of the EO, where it means:
27.She further relies upon the provision in section 40AU of the EO which requires the IMC to maintain full composition, and to ensure that a person qualified to fill any vacancy arising is, within three months of the vacancy arising, nominated for registration and an application is made to the Permanent Secretary for registration as a manager. 28.It can also be noted that section 3 also includes the following definition of “manager” in relation to a school:
29.I do not think the provisions relied upon by the Applicant are helpful to her proposed interpretation of section 27. Indeed, her proposed interpretation is not reasonably arguable. The wording in the section is clear: only a person who has been registered as a manager under section 29 can act as a manager. The fact that there can be a manager and an alternate manager, and that vacancies arising should be filled within a particular time through further nomination and registration does not change that clear wording. Further, as Mr Mok submits, the Applicant’s interpretation would also render the EDB’s control of the registration process meaningless. 30.Lastly, whilst it might be thought in general helpful if those nominated to a post of manager are permitted to sit in on IMC meetings before registration – and I understand why the Applicant would have wanted to do so – the decision whether or not to allow a nominated person to sit in is a matter for each IMC to decide for itself. It is not a matter governed by the EO, nor decided by the EDB. 31.Though I obviously will not rehearse them at length, I have taken into account the Applicant’s full submissions which sought to provide greater context for the operations of IMCs, including by reference to material still to be found on the web-page of the EDB which highlight, amongst other things: (a) the recognition of taxpayers’ entitlement to understand how government provided aid to schools is accounted for; (b) that the delegation of power to schools requires the government to be responsible for monitoring and providing checks and balances; (c) that there are differences between schools to be taken into account; (d) that committee should have proper representation of parents and teachers, who know students best; (e) the idea is to enhance transparency, to ensure money is spent properly and to enhance school teaching. But these contextual matters do not affect the clear proper interpretation of section 27 of the EO. 32.Nor is there any need to make reference to analogous provisions relating to boards of company directors, such as the Listing Rules and codes of corporate governance, to which the Applicant also drew my attention. I accept that in certain aspects the operation of an IMC is like that of other corporate governance structures which include non-executive directors. But it is the specific provisions relating to IMCs that are relevant in this case, and which need to be the centre of focus. 33.Nor do I think the specific criticism of certain decisions which were or may have been taken by the IMC take the argument any further. 34.I have also taken into account the Applicant’s submission that the EDB was in the position to have been able to take remedial measures when informed that there might be problems with the School or the IMC. But her complaint that the EDB took no action to ensure that the Applicant could attend the First Meeting also cannot affect the proper construction of the relevant statutory provision. Nor do I think the timing of the election/nomination for managers of the School’s IMC is material to that proper construction. The EDB’s stance was not that the Applicant could not attend the meeting, but rather that section 27 provides that she could not attend to act as a manager unless she had been registered under section 29. Whether she could attend the meeting in some other capacity, that is sitting in but not acting as a manager, was a matter left to the IMC. The Applicant herself accepted that a manager who has not completed the registration procedures has no right to vote and is not to be counted as far as quorum is concerned. 35.In addition to the absence of relevant decisions by the EDB amenable to judicial review, there is no merit on the Applicant’s complaint on the Registration Issue. G. The Confidentiality Issue 36.The Confidentiality Clause in the School’s IMC Constitution, clause 18.5, approved by the EDB, provides as follows:
37.After her appointment and registration as alternate parent manager, the Applicant was sent a number of documents including the NDA, which she was asked to sign. The NDA was in the following terms:
38.I note the point that though the minutes of the First Meeting recorded that the Principal asked all Managers to fill out and sign, amongst other things, the NDA forms, the minutes do not formally record that the Managers agreed or passed a resolution to approve the NDA form, and the requirement to sign it. Nevertheless, where almost everyone but the Applicant (including the ‘parent manager’ to whom the Applicant was the ‘alternate’) appears to have signed an NDA form, clearly it was a matter on which at least a majority agreed. 39.The Applicant was not willing to sign the NDA. She complains that this deprived her of her right to attend and her right to information. But I note that she also proposed as an alternative that the IMC consider amending the Confidentiality Clause in the Constitution, in effect to limit the scope of confidentiality (though that matter was not placed on the agenda of an IMC meeting). Hence, as is also clear from other submissions (see below), the Applicant’s complaint on the Confidentiality Issue rests not just on her complaint about the NDA but also on the underlying Confidentiality Clause as drafted and approved. 40.Neither the EO nor the ER make any express provisions regarding confidentiality relating to the operation of an IMC. On the other hand, it should readily be accepted that meetings of an IMC should generally be protected by a duty of confidence. I think that, at least to some extent, even from the point of view of the Applicant that is not controversial. 41.Reference can be made to the two decisions of G Lam J (as he then was) in University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd [2016] 1 HKLRD 536 at §40 and University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd (No 2) [2016] 4 HKLRD 113 at §33 in support of the propositions as to how a duty of confidence arises, and that recognition by the law of confidentiality in the context of IMC meetings would generally serve to protect various features of the organisation, operating on the twin principles of confidentiality and collective responsibility. 42.The same two principles are to be found in the School Managers’ Handbook relating to school-based management, in Section 4 dealing with Code of Ethics for School Managers. Clauses 4.1.5 and 4.1.7 provide as follows:
43.I note the Applicant’s submission that clause 4.1.7 does not refer to any need to sign an NDA. But requiring its members to sign an NDA is, it seems to me, simply the IMC seeking to emphasise the importance of and ensure the keeping of confidentiality. The Applicant also sought to distinguish the University cases, but I think the general principles relating to confidentiality remain applicable (even if the underlying specific facts of the cases are different from the circumstances presently under consideration). 44.Much of the Applicant’s argument is based upon her pointing out that not every single thing which might be discussed or said at an IMC meeting would be confidential, or need to be kept confidential, not least when they may have different sources. She pointed to a number of matters in prior minutes, or in the accounts, which would not seem to be of any or any particular confidentiality. That may be strictly correct, and I see the argument that certain materials should not fall within the scope of confidentiality of the IMC. The Applicant also pointed to the fact that certain materials such as development plans, annual plans, reports and financial documents have to be disclosed. But I do not see that is a proper foundation for criticising the request to sign an NDA, or for the inclusion of the Confidentiality Clause in the Constitution. Indeed, there is no tension in requiring matters to remain confidential up to the point when they are publicly disclosed, if they are later to be disclosed. The Applicant also submitted that requiring an NDA to be signed should not be a routine matter, and the request to sign was not accompanied with any stated deadline or a penalty for failure to sign, or any reasons for asking or imposing any such penalty. But I do not think that gives rise to any reasonably arguable complaint in a public law sense. 45.Section 40AF(1) of the EO provides that the IMC may do anything that appears to it to be necessary or expedient for the purposes of, or in connection with, the proper management, administration or operation of the school in accordance with the vision and mission and the general educational policies and principles set by the sponsoring body of the school, but the Applicant says that there must be limits, and they can be found in section 40AF(2). However, actually those matters set out in the subsection are specifically identified as “without limiting” what is said in section 40AF(1). 46.Further, the Applicant submitted that if there is no express reference to confidentiality or NDAs in the Ordinance, then they should not exist. Alternatively, any confidentiality should be limited in scope to specific matters – such as the agenda, what individual managers say, how they vote, discussions before resolutions, and information exclusive to the school – but if confidentiality is expanded to cover everything, it is bound to be problematic. Further, the Applicant said that if the Court did not intervene in this case, it would provide a new benchmark. 47.Again, I have taken into account the contextual matters highlighted by the Applicant, as well as her submission that the EDB was in the position to have been able to take remedial measures when informed that there might be problems with the School or the IMC (see above). 48.But, I am afraid that I disagree with the Applicant that she is able to demonstrate even reasonably arguable challenges which might give rise to the proper grant of leave to apply for judicial review. 49.In addition to the absence of relevant decisions by the EDB amenable to judicial review, there is no merit on the Applicant’s complaint on the Confidentiality Issue. H. The Approval of Constitution Issue 50.Section 75A of the ER, headed ‘Constitution of incorporated management committee’, provides:
51.It can be seen that section 75A(1) sets out the test – namely satisfaction that operation of the committee in accordance with the constitution is likely to be satisfactory – and section 75A(2) provides a non-exhaustive list of matters which might be considered necessary for any likely approval of the constitution. Whilst paragraph (k) refers to provisions for meetings and proceedings of the committee, there is no express reference to confidentiality. 52.I have already noted above the Applicant’s submission that the absence of express reference to confidentiality means that it should not exist in the constitution. But I do not think that point is reasonably arguable. The duty of confidence is one almost bound to arise in the context of meetings and proceedings of the committee, and the EDB’s approval of the Constitution of the IMC for the School including its Confidentiality Clause cannot realistically be challenged or faulted on any public law grounds. 53.In addition to the point on delay, there is no merit in the Approval of Constitution Issue. I. Other Criticism 54.As indicated, the Applicant in her reply affirmation – as well as in her oral submissions – appeared to shift some of the challenge to criticisms of the EDB’s failure to act or its acquiescence in the decisions of the IMC. She also emphasised what she saw as problematic decisions taken by the IMC, when not fully constituted by all of the managers or alternate managers envisaged. First, I do not think these proceedings are the place to make complaint about individual resolutions or decisions of the IMC. Secondly, this is not a ground of challenge identified in the Form 86, which is contrary to the requirement in Order 53. 55.But in any event, the point of the school-based management framework and the creation of IMCs was to provide schools (such as the School) with a high degree of autonomy and flexibility, and responsibility for management of schools. The Applicant is obviously correct when she says that enhanced flexibility and autonomy is definitely not absolute or arbitrary. But, under the EO, it is the IMC which is entrusted with the responsibility of governing the school, and which is made accountable to the EDB, the sponsoring body, parents and the community for the overall performance of the school. Nor does it seem to be relevant to the present proceedings that other schools may not yet have set up IMCs as required. 56.Further, the criticism of the EDB in its alleged inaction or acquiescence goes nowhere if there is no merit in the underlying complaints about the actions and decisions which were actually made by the IMC. I have already held that the Applicant’s first area of criticism is based upon an incorrect interpretation of section 27 of the EO. After providing various information in its response to the Applicant, and reviewing the response of the School in its letter dated 2 July 2021, the EDB was entitled to take the view that no further follow-up action was required relating to the NDA and confidentiality matters. Having actively approved the Constitution of the IMC, there was obviously no subsequent relevant inaction or acquiescence to complain of in that regard. J. Result 57.As a result, the application for leave to apply for judicial review is dismissed. 58.I would add that I see some force in Mr Mok’s submission that the Applicant has focused on the wrong ‘target’ when making the EDB the intended respondent to the main thrust of her intended challenges. These proceedings are clearly born of grave dissatisfaction with the actions of the IMC vis-a-vis the Applicant and more generally in its management (where she sees the real problems she has listed), and her dissatisfaction with the failure of those to whom she made complaints to have agreed with her about her complaints and to have acted accordingly. K. Costs 59.Mr Mok submitted that, should the application be dismissed, the EDB should be entitled to its costs. As he submitted, the Applicant has in effect had a substantive hearing of her complaints raised by her Form 86. Her application has failed on a number of hurdles, including questions of amenability and delay as well as on the underlying merits. The invitation perhaps to redirect the challenge against the IMC (which Mr Mok accepted was arguably amenable to judicial review) was expressly rebuffed. 60.In those circumstances, and in the exercise of my discretion, and notwithstanding that I accept the genuineness of the Applicant’s underlying concerns about the management of the School (about which I express no opinion), it seems to me that the Applicant should bear the costs, to be summarily assessed by me if not agreed. 61.The EDB shall provide its Statement of Costs for Summary Assessment within 14 days, and the Applicant shall provide any List of Objections within 14 days thereafter. I will then perform the summary assessment on paper.
The applicant, acting in person Mr Gilbert Mok, Senior Government Counsel (Ag.), of the Department of Justice, for the putative respondent | |||||||||||||||||||||||
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