Lantau International School Ltd v. Secretary for Education

HCAL 1143/2021

[2022] HKCFI 774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1143 OF 2021

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D E C I S I O N

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A. Introduction

1.It is sometimes said there are three things that matter in property: location, location and location.  What about schools?

2.The Applicant has operated a primary international school on Lantau Island known as Lantau International School (“LIS”) since 1995.  It is keen to open a secondary stream or section at the location of Tung Chung Fort on Lantau Island.  Tung Chung Fort is on government land.  In 2017, the Applicant applied to the Lands Department (“LandsD”) for a short-term tenancy (“STT”) of Tung Chung Fort for the purpose of running a secondary international school (which is formally known as ‘an English medium secondary school with a non-local curriculum’).

3.LandsD’ policy for granting such an STT is that the applicant must have first obtained the “policy support” from the relevant bureau.  The relevant bureau in the present case is the Education Bureau (“EDB”).

4.On 10 March 2021, EDB advised LandsD that it would decline to give policy support.  On 19 March 2021, LandsD rejected the STT application based on EDB’s refusal.  On 18 May 2021, upon the Applicant’s request, EDB also issued a letter to the Applicant directly explaining why it refused to give policy support.

5.On 13 August 2021, the Applicant filed a Form 86 identifying (a) EDB’s refusal to give policy support as contained in the letter dated 18 May 2021, and (b) its earlier advice given to LandsD on 10 March 2021, as the two decisions the subject of the intended review.  Since they in essence refer to the same decision, I will refer to them together as “the EDB Refusal”.

6.On 19 January 2022, the Applicant filed a Notice of Amendment of Form 86, with the draft amended Form 86 (“AF86”) attached.  It seems to me to be appropriate to proceed on the AF86, and I give leave to permit that.

7.In the AF86, the Applicant added a third impugned decision, being EDB’s policy that provision of international school places be assessed on a territory-wide basis, rather than a district-specific basis (“Policy”).  I will return later to whether the Applicant has sought to deploy this challenge to the Policy as a ground to challenge the EDB Refusal, rather than attacking the Policy itself.

8.The Applicant has filed three affirmations, one by Mr Ho Yu Tat, an Accountant of the Applicant and two by Mr James Lambert, the Supervisor of LIS.  EDB has filed one affirmation by Ms Yau Sze Wing and LandsD has filed one affirmation by Mr Ip Cheuk Yan.

9.I previously directed a ‘rolled-up’ hearing, which was held remotely via VCF on 15 March 2022.  The Applicant (LIS) was represented by Mr Ernest Ng of Counsel.  The Putative Respondent (EDB) and the Putative Interested Parties (LandsD) were represented by Mr William Liu, Senior Assistant Law Officer (Civil Law) and Mr Aaron Lam, Assistant Law Officer (Civil Law) (Ag).  At the conclusion of the hearing, I reserved judgment.

10.This is my Judgment.

B.  The Appropriate Target of the Intended Review

11.It may be convenient briefly to discuss whether the EDB Refusal was the appropriate target, as opposed to LandsD’ rejection of the STT application.  Previously, there seemed to be some dispute between the parties on this matter.  LIS’s written submissions defended its choice of target.  But the written submissions for EDB and LandsD stated that there is no need for the Court to resolve this issue, because the application is devoid of merits in any event.

12.The EDB Refusal was given for the purpose of assisting LandsD in deciding whether it should grant a STT.  The STT application forms the context and informs the nature of the EDB Refusal, and   having EDB’s policy support is a pre-requisite for LandsD to grant a STT.  If there was any dispute on whether the matter has sufficient public element to be the proper subject of judicial review, choosing EDB’s or LandsD’ decision as the target would not be determinative of the issue.

13.In any event, since EDB no longer argues that the EDB Refusal could not be the proper target of the intended review, it is perhaps not profitable for me to delve into too detailed a discussion.  Suffice to say that it seems sensible to identify the EDB Refusal as the proper target in the present application.  If LandsD’s ultimate rejection were targeted, obviously LandsD would rely on the EDB Refusal as its justification.  The EDB refusal would still be the subject of review.

C.  EDB’s policy on giving support to STT Applications

14.EDB explains its policy in Ms Yau’s affirmation.  For existing schools, there are two routes by which a school can gain the recognition as an international school in Hong Kong.

15.The first route is called the “School Allocation Exercise” (“SAE”).  Every 5 years or so, EDB commissions a consultancy study to be conducted by an outside consultant to project the supply and demand of international school places in Hong Kong.  The material and latest consultancy study was made in 2017 (“2017 Consultancy Study”) covering seven school years from 2016/17 to 2022/23, and I will further consider it below.  If there is projected shortfall in international school places in the coming years, EDB will carry out an SAE, involving competitive bidding, to select the best applicants to run international schools at the allocated premises under a set of requirements.

16.In projecting whether there will be shortfall in school places, EDB adopts a “territory-wide” basis and looks at the demand and supply in Hong Kong as a whole, rather than on a district-specific basis.  EDB says this is because international schools are free to admit students from any district in Hong Kong and studies have shown that location is not an important factor when the students and parents choose their schools.

17.The second route is for an existing private school to apply for recognition as an international school (in the absence of an SAE).  The school will have to meet a set of what EDB calls the “start-up requirements”, which includes proof of an unmet demand for non-local curriculum.  The rest of the “start-up requirements” include showing a satisfactory curriculum and accreditation plan, a sustainable financial plan, and so forth.

18.A request for policy support for granting a STT to operate an international school does not strictly fall within either the two routes.  EDB says it will consider applications of this type on a case by case basis by reference to its prevailing policy framework and to assess all relevant factors.  The current practice is to apply the start-up requirements with some modification on the accreditation requirement.  Among all consideration, the fundamental consideration is to ascertain if there is a shortage of international school places.

19.Pausing here, since the question of any unmet demand for international school places features in all three types of exercise or application mentioned above, one may query if it is really possible to gain the international school recognition or support outside an SAE.  If EDB has decided not to carry out an SAE (as it had at the relevant time), it means that it must have already concluded that there was no unmet demand.  Then school operators trying to gain recognition or support through either of the other two routes would first have to persuade EDB that its view (based on the consultancy reports) that there is in fact no shortage is wrong.  That would be rather surprising if the policy were so designed.

20.It seems more likely that EDB is willing to assess shortage – whether on a territory-wide or some other basis (as to which see below) – in circumstances where EDB has not itself thought there should be an SAE.  This has to be the case if the routes/ways outside an SAE are to exist meaningfully as part of EDB’s policy.

21.Indeed, as will be seen from a review of the relevant correspondence below, EDB did show willingness to assess shortage of international secondary school places in response to LIS’s application for the STT.  I think it fair to say that the EDB actively sought various information from LIS including specifically that related to unmet demand, and the individual location and circumstances and ‘community’ of and around LIS.

D.  Correspondence between EDB and the Applicant

22.Though the story of LIS’s desire to pursue a secondary section begins somewhat earlier in 2017 (or even 2015), LandsD received LIS’s material STT application in June 2019, and LandsD sought EDB’s view in August 2019.  After receiving LandsD’ request, EDB sought information and documents from LIS via LandsD.  (Though it might have made more sense for the EDB and LIS to have been able to correspond directly on the point within EDB’s sole purview, that is not how the system is operated.)  There were two rounds of correspondence before EDB made its decision comprising the EDB Refusal.

23.The first round began by letter dated 3 December 2019 issued via LandsD.  EDB asked LandsD to ask LIS to provide an array of information about the proposed secondary school, including information showing the unmet demand of secondary school places and meeting the needs of the community.  The other information requested was the vision and mission, the management and organisation, learning and teaching, student support, student mix and admission policy, financial plan and fee policy, quality assurance and accreditation, number of school places provided and enrolment of the current primary school by level in the past three years, proposed class structure and number of places offered, non-local curriculum and accreditation plan, layout plan with facilities cater for the proposed curriculum and any other information LIS considered important.

24.By letter dated 8 January 2020, LIS provided a 13-page long item by item reply. The material part of the letter providing information to show the unmet demand for secondary school places was as follows:

Securing a place after the primary section in L.I.S. is always difficult and stressful for both parents and children, particularly for families living on South Lantau as there is a dearth of international secondary schools relative to the demand in this part of Hong Kong.

Further, according to a recent article in the South China Morning Post, the number of students applying for secondary school places is estimated by the HK Government to rise in the next five years, with the number of children at age 12 expected to increase from about 63,000 in 2020-21 to 74,000 in 2024-25.  Around 55,000 children are expected to apply to a secondary school in Hong Kong in 2020, an increase of 1,400 students compared with 2019.  While the overall number of school places will increase proportionately, only slightly more than 100 places are due to be added to English-medium schools in 2020.  However, the article highlights these schools are often preferred by parents.

For many years, parents whose children are enrolled in the primary section at L.I.S. have been asking for L.I.S. to open a secondary section so that their children may be guaranteed to continue in the same international learning environment as in the primary section.  This is because most of the students at L.I.S. are not native to Hong Kong (see Tables 4 to 7) and will leave Hong Kong to go to university upon finishing secondary school.

Most of the secondary schools in Hong Kong have their own primary section and thus do not require an external primary section feeder school.  For the majority of parents whose children are in the primary section at L.I.S., the only two international schools on Lantau Island with a secondary section – Discovery Bay International School and Discovery College (English Schools Foundation) – are unaffordable due to their debenture policy. Furthermore, priority in those schools is given to their own primary section students and L.I.S. students are always put on a waiting list, with their parents regularly reporting to us that they have been rejected as there are not sufficient spaces available.

Anticipating problems, many parents make the decision to remove their children from L.I.S. at the end of Primary 5 or during Primary 6 in favour of a school that has a secondary section in order to secure a place for them in future years.

In some instances, students graduating from Primary 6 at L.I.S. are forced to repeat this level in another school with a secondary section in order to join Form 1 (Year 7) afterwards.  This is not only costly for parents but also hampers the academic and social progress of these students.

While there are a number of other secondary schools on Lantau Island, such as the YMCA of Hong Kong Christian College at Tung Chung, and the Buddhist Fat Ho Memorial College at Tai O, these are religiously-affiliated Direct Subsidy Scheme institutions that follow the Local Curriculum (e.g. Hong Kong Diploma of Secondary Education) and which teach primarily in Cantonese.  These are not suitable for many of the students in the primary section at L.I.S. as the majority are not native to Hong Kong and their parents report to us year after year that they do not wish for their children to join these institutions.

25.The material part of the letter providing information on meeting the needs of the community was as follows:

Hong Kong is very short of school land, in particular on Lantau Island.  The government school at Tung Chung Fort has been closed for more than ten years and the community has not been served during that time despite the large increase in population on both North and South Lantau.  The expansion of the Hong Kong International Airport is putting international schools under pressure given that the majority of staff are not native to Hong Kong and seek for their children to be admitted to these schools.  In addition, the permanent closure of the government’s secondary school in Mui Wo a number of years ago and the recent rezoning of the land was a huge loss to the community of South Lantau.

Reinstating existing school facilities in a historic site that have been neglected is the most environmentally-friendly and sustainable way of expanding the availability of schools for the community, whilst helping ensure the maintenance of Hong Kong’s heritage.

The existence of a secondary school in Tung Chung Fort will offer families on Lantau Island the opportunity to send their children to a secondary school closer than would otherwise have been the case, delivering cost savings for the parents, as well as time savings and a reduction in stress for students through a decrease in travel time.  This in turn may have a beneficial environmental impact through a reduction in air pollution for those students traveling to school by private means and who would otherwise travel further from home to get to school.

The establishment of an L.I.S. secondary section in Tung Chung will further significantly improve the local economy as demand for local services (e.g. food stores) by students, staff and parents increases.  We will also employ a number of local staff e.g. educators, administrative staff, janitors, gardeners and contractors at the school.

Educators will also have the opportunity to run after-school clubs (as they already do in the primary section) which will be open to all adolescents, whether or not they are L.I.S. students.  The premises will also be made available for evening and weekend clubs by L.I.S. educators and members of the community, and these will be open to all.

26.By letter dated 9 March 2020, EDB (again via LandsD) raised queries on the information provided and sought further information.  One of queries raised was concerning whether there was unmet demand for places in secondary international schools.  EDB observed and commented that:

You have shared some information about the demand of secondary school places in HK.  An article from SCMP was quoted as one of the supporting information.  However, it seems that the quoted article from SCMP referred to the situation of local students and school places offered by public schools.  For international schools in HK, EDB would like to meet the demand for international school places for non-local families living in HK or coming to HK for work or investment.

Please note that according to the report of the consultancy study on the provision of international school places at the primary and secondary levels in HK released in Feb 2017, there will be no shortfall in international school places at primary and secondary levels in the six years starting from 2017/18.

You have shared the situation of your P.6 students. Please provide concrete information to show the unmet demand (e.g. graduate survey or other information that the school considered necessary for EDB’s consideration).

27.Under the heading of ‘meeting the needs of the community’, EDB also raised the following:

You shared the advantage of the secondary school to the local community.  As an established schools [sic] in Lantau Island for more than 20 years, please advise on the needs of the community identified by the school and what are the ways that the school could assist to meet the needs of the community.

28.On top of those, EDB also raised queries or commented on LIS’s enrolment data, the planned class structure, curriculum and accreditation plan with International Baccalaureate (“IB”) (where LIS plan to run the IB Middle Year Programme), the layout plan and facilities to meet the planned curriculum, management and organization, student support, student mix and admission policy, financial plan and fee policy.  The letter concluded by asking LIS to note that more concrete information to show the feasibility of the project would facilitate EDB to consider the captioned application.

29.LIS replied by letter dated 14 April 2020 to answer the queries raised by EDB.

30.Regarding whether there was an unmet demand for secondary international school places, LIS informed EDB that it had run a survey (“LIS’s 2020 Survey”) from 18 March to 31 March 2020.  A questionnaire was sent to all parents of LIS by email.  A sample blank questionnaire was attached to the letter, though the completed questionnaires were not.  There are 6 questions in the questionnaire:

(1)  For Question 1, parents are asked to indicate the classes of their children (from RC to P6).

(2)  Question 2 reads “Do you plan to enrol your child(ren) in a secondary school in HK?”  The answer options are “Yes”, “No” or “Don’t know”.

(3)  Question 3 reads “If you have started looking for a secondary school, please rate how easy or difficult you are finding it/have found it to secure a place for your child(ren)”.  The answer has five options: “very difficult”, “difficult”, “neither easy nor difficult”, “easy”, and “every easy”.

(4)  Question 4 reads “If you have started looking for a secondary school, please rate how satisfied you are with selection of secondary school options available for your child(ren) in HK.  The answer options are “very satisfied”, “satisfied”, “neither satisfied nor dissatisfied”, “dissatisfied” and “very dissatisfied”.

(5)  Question 5 reads “if you are dissatisfied or very dissatisfied, please explain why:”

(6)  Question 6 reads “If LIS has a secondary stream offering the International Baccalaureate (IB) Middle Years programme (ages 11 to 15), would you enrol your child(ren) in it?  The answer has the option of “Yes”, “No, please explain why:” and “Don’t know”.

31.LIS informed EDB that 51 parents (of 62 students, which represented 27% of the students) completed the questionnaire.  The results of the survey were summarized.  In gist, a vast majority of the responding parents from LIS found it either ‘very difficult’ or ‘difficult’ to secure a secondary school place and found the options for secondary schools either ‘very dissatisfactory’ or ‘dissatisfactory’.  LIS pointed out that:

The reasons cited for being dissatisfied/very dissatisfied centred around the following themes: high fees/debenture, lack of choice of English secondary schools (in Tung Chung/South Lantau, long commuting distances and long waiting lists.  One parent commented: “No existing school matches the values and liberal pedagogy of [LIS].  Schools in HK are neither inspiring nor nurturing, not to mention the promotion of environmentalism.)  Another noted: (other than elitist unaffordable international schools there is no viable option for a good quality guaranteed place in an English medium secondary school” and a third said: “Long queues, we tried DBIS, DC, and this did not work so far.  Need to look for other options.”  Feedback from other parents included: “It would be wonderful if we could stay in Hong Kong with our kids going to your future secondary school” and “My family is well-established in South Lantau for the long term, and the lack of International Secondary Schools in the area is a great concern to us.  I have 3 children, and all of them will be attending LIS for 7 years.  My eldest is in P5, and we have been evaluating her options after P6; there aren’t many.  My younger 2 sons will very likely follow where she goes.  It will be incredibly helpful if there were to be an LIS option starting in September 2021.  I am aware that this is very close, and I do appreciate your efforts to make this happen.  Please keep me informed on whether this is going to be an option or not as new developments unfold.

32.For Question 6, LIS showed the breakdown of the answers in a table.  Out of 62 responses (representing parents’ choice for the 62 students) across all forms, there are 42 “Yes”, with most positive responses to be found in the junior primary (RC to P4).  (As an aside, that would seem to make sense, because parents of children in the senior primary years, in particular P6, would almost certainly have already had to make and likely commit to alternative secondary schooling arrangements by that time.)

33.Under the heading relating to meeting the needs of the community, LIS informed EDB that:

Through regular feedback from parents and the aforementioned survey, we have identified that there is a real need in the community for an English International secondary school covering the Tung Chung and South Lantau area.  84% of responses to our survey said that if LIS had a secondary stream, they would enroll their child(ren) in it, provided LIS fees remain in the range of the Primary stream fees.  As mentioned before, we expect it will be the case provided the STT charges for the currently abandoned site to be paid to the government remain reasonable and affordable for a school of a maximum intake of 120 students.

34.Following that LIS letter, there were no more replies, queries or comments from EDB, despite LIS’s repeated chasing.

35.In one letter dated 28 October 2020 sent directly to the Secretary for Education/EDB, LIS pointed out that even an immediate approval would unlikely enable opening a secondary stream before September 2022 at the earliest, and that to wait another year would mean opening in September 2023 at the earliest, almost 6 years after the initial application on 30 November 2017.  The letter appealed for EDB’s help to obtain a positive response from LandsD to the application for a secondary school in Tung Chung.  In another later dated 10 November 2020 sent directly to the Secretary/EDB, LIS provided a letter of rejection given to one LIS primary student by a Tung Chung secondary school, which could not even offer her an interview because of the “large number of applications this year”. LIS stated:

This is one example of the problem we have outlined in our application that, so far, has remained in limbo for reason we do not understand.

As the land and derelict buildings have been vacant for so long, no one understands the current procrastination on what was a simple and clear win-win proposal.

36.Eventually, after a silence of nearly 10 months since LIS had provided the requested information in support of its application in April 2020, on 1 February 2021 LIS made a complaint about the delay to the Ombudsman.

37.There then followed EDB’s internal advice to LandsD on 10 March 2021 refusing to give LIS the requisite policy support. Somewhat bizarrely, also on 10 March 2021, on the same day that EDB notified LandsD of its refusal to give policy support, the Secretary for Education provided a reply to LIS’s letters of 28 October and 10 November 2020 in the following terms:

We noted that your school had submitted an application to the Lands Department (LandsD) regarding a proposed Short Term Tenancy for operating an English-medium secondary school adopting a non-local curriculum at Tung Chung Fort, and provided further information regarding the proposal.  We have relayed your concerns to LandsD and trust that they will liaise with you further on the application.

38.Unless that letter was simply disingenuous – because it gave the impression that the hold-up was in LandsD, and would likely have left most readers with the impression that policy support had already been given – it seems that within EDB the left hand did not know what the right hand was doing.

39.LandsD’s ultimate rejection of the STT application was given by letter dated 19 March 2021.  The letter made clear that it was because no policy support was given from the international school policy perspective to the STT application that LandsD was unable to process the application further and so it was rejected.

E.  Reasons for the EBD Refusal

40.Obviously, LIS was not satisfied with the result.  It chased after EDB for the reasons for its refusal.

41.EDB eventually gave written reasons for its refusal by an email dated 9 April 2021 and the letter dated 18 May 2021.

42.In the 9 April 2021 email, EDB stated that:

Having duly considered the application from various aspects, including the proposed curriculum plan and the relevant accreditation, the demand for international school places, and financial sustainability of the proposal, etc., we regret to inform you that no policy support from the international school perspective could be given to the application.

43.The 18 May letter stated as follows:

The Government supports the development of a vibrant international schools sector so as to meet the demand for international school places from non-local families living in or coming to Hong Kong for work or investment, which is instrumental to sustaining Hong Kong’s position as an international business and financial centre.  To this end, [EDB] commissions a consultancy study from time to time to ascertain the demand and supply situation in the sector and when there is a projected shortfall in such places identified, we will identify suitable vacant school premises or greenfield sites for allocation via an open and competitive bidding process for the development of international schools.  In other words, we support deploying government land resources for international school development to address the shortage of international school places pursuant to our prevailing international school policy objective.

On 22 August 2019, [LandsD] referred to this Bureau the [LIS]’s application for direct grant of a STT for the ex-Tung Chung Public School premises at the Tung Chung Fort for operating an English-medium secondary school adopting a non-local curriculum.  Along the principles as outlined above, we have to ascertain if there is a shortage of secondary school places as claimed in your application which would justify the direct grant of the STT.  As conveyed to your school via LandsD on 9 March 2020, there would be no shortfall in international school places at primary and secondary level until the 2022/23 school year according to the last consultancy study on the provision of international school places at primary and secondary levels in Hong Kong.  This notwithstanding, this Bureau has duly considered your STT application, including the remoteness of the location of your current school premises as you claimed in your application, the response rate and findings of your survey amongst your primary school parents that you furnished to us in April 2020, as well as the updated supply and demand situation of international secondary school places in Islands District.  Having duly considered all related information and pertinent factors, we have come to the conclusion that a shortage of international secondary school places is not fully substantiated.

In your letter, you questioned the reasons behind this Bureau’s assessment of the financial sustainability of your school proposal, the curriculum and accreditation plan of the proposed secondary school, as well as the articulation pathways of graduating students who will only be at IB Middle Years Programme (i.e. the remain 2 years of studies before they could sit for the IB examination).  We wish to clarify that these are all necessary issues that we have to examine when assessing school proposals involving the use of government land resources according to prevailing practice.  This is to ensure the prospective schools would be able to operate up to the required standard, deliver a quality and recognized non-local curriculum and sustain the operation financially in the years to come.  The considerations behind are to ensure the quality of education in Hong Kong and the protection of students’ well-being.

We trust that the above should have clarified the matter.  Should you need further information regarding the international school policy, you may wish to contact [details given].

44.It is undisputed that the most important factor leading to the EDB Refusal was its conclusion that there was no shortage of international school places.  In her affirmation, Ms Yau stated that whether or not there is a shortage is the most important consideration in deciding whether policy support should be given, and where the prevailing policy to ascertain the provision of international school places is on a territory-wide basis.  This fact is also borne out by the 18 May 2021 letter.  (For present purposes, I assume EDB’s use of the rather oblique phrase, stating that the shortage was “not fully substantiated” was not intended to convey an acceptance that the shortage was “partially substantiated” – though it is possible the phrase was actually carefully chosen.  If the phrase was carefully chosen and was intended to have a more nuanced meaning, I have not been told what that meaning was.)

45.It might be said it was not specified in the letter within which geographical area or timeframe the lack of shortage was found.  But there was specific reference of projection up to the 2022/23 school year in Hong Kong as a whole and there was reference to the updated supply and demand in the Islands District.  In her affirmation, Ms Yau said EDB’s conclusion was that there was no evidence suggesting a shortage of international school places in Hong Kong, as well as on Lantau Island.

46.Mr Ng submits (and I accept) that the 18 May 2021 letter shows that EDB reached its finding that there was no shortage or unmet demand based on three pieces of material: (1) the 2017 Consultancy Study, (2) the LIS’s 2020 Survey, and (3) the “updated supply and demand situation of international secondary school places in Islands District” (“Updated Situation”).

47.These three materials play a key role in LIS’s proposed grounds of review.  I have set out above in some detail LIS’s 2020 Survey. The other two could be briefly summarized, below.

F.  The 2017 Consultancy Study

48.As said, EDB commissions a consultancy study to ascertain the supply and demand of international school places every 5 years or so for the purpose of considering whether it should carry out the SAE.

49.The most recent one available at the time – the 2017 Consultancy Study – was produced in February 2017 by a consultancy company known as Policy 21 Limited.  The formal title of the report is “Study on the Provision of International School Places in Hong Kong” and it is 130 pages long.  Paragraph 1.1.3 shows the study was to “stocktake the latest position” for the 2015/16 school year, and to make projections on the demand and support of such school places for the seven school years from 2016/17 to 2022/23.

50.The study was commissioned on a territory-wide basis rather than a district specific basis, following EDB’s prevailing policy.

51.Paragraph 1.3.1 states that private independent schools are excluded from the analysis.  Therefore, for the purposes of the report, “International School places” are defined as places offered by ESF schools and other schools recognised by EDB as international schools – obviously meaning territory-wide.

52.This seems to me to be potentially relevant when considering the part of the 2017 Consultancy Study relating to parents’ perceived importance of factors affecting choice of school.  For example, paragraph 5.4.1 has a Table 5.5, which demonstrates the perception of importance of factors broken down by local and non-local students.  Apparently contrary to the general property adage I quoted, the table shows ‘Location’ to have a mean score showing it as the second least important factor amongst factors including Curriculum, Quality of teaching staff, Reputation, Prospect of graduates, and Tuition fee.  Perhaps unsurprisingly, the Quality of teaching staff factor was perceived to be most important.  But the Table also identifies that the factor of Location had the greatest disparity of perceived importance between local and non-local students, where the factor of Location was apparently perceived to be more important for non-local students.

53.It might also be noted that at paragraph 3.4.3, it was recorded that 64.2% of the secondary level international school places were on Hong Kong Island, whilst 21.2% and 14.6% were in Kowloon and the New Territories respectively.  As at the school year 2015/16, there were 2,491 students as against 2,734 places in the New Territories.

54.The data fed into the study and the methodology used to project demand was summarized in Chapter 2.  In gist, the data of the study was collected from a school survey, a parent survey and a business survey, as well as supplemented by more in-depth interviews with the relevant stakeholders.  It was said that the data was collected based on proper statistical method to ensure its representativeness.  A total of 35 international schools, 454 parents and 3,077 business establishments participated in the study.  The reason to include the business survey is said to be because there is no readily available information on the potential demand from expatriates who are or will be employed by establishments in Hong Kong, so that targeting organisations that are likely to be employing or will employ expatriates helps to bridge the data.

55.The total demand was then projected based on a mathematical model premised on the time series of the enrolment data from the 2006/07 to 2015/16 school years and their relationship to population size, Hong Kong’s GDP and unmet demand shown by number of students placed on the waiting list.

56.The 2017 Consultancy Study projected no shortfall of international school places in the school years up to the 2022/23.

57.In Chapter 10 on Observations and Recommendations, it is noted that, as regards primary level international school places, there will continue to be an overall surplus in number of places, but a few schools would continue to be oversubscribed due to parental choice (a phenomenon also seen in the local school system).  Paragraph 10.1.2 states:

At the secondary level, there will be an overall surplus of 1 556 places by 2016/17.  It is projected that there will be an overall surplus of 19 international school places by 2022/23.  In other words, there is also no projected shortfall at the secondary level.

58.Speaking for myself, that paragraph seems to identify that over the projected period covered by the 2017 Consultancy Study the surplus of international school places at secondary level would effectively fall to zero (19 being almost statistically irrelevant, where the starting surplus of 1556 is projected to reduce to a number about 1.2% of that figure).  Therefore, whilst it may be correct to say that there was no projected shortfall at the secondary level, it was also correct for it to be pointed out in paragraph 10.1.3 that:

Since no shortfall in both international primary and secondary school places is projected, the Government should closely monitor the supply and demand of international school places while facilitating the development of the international school sector.

59.Indeed, it is also surely obvious that the further away the projection, the less confidence one might have in the continued accuracy of that projection.  It can also be noted that the 2017 Consultancy Report was effectively projecting a near parity of overall supply and demand for secondary school places in the school year 2022/23 – and that the school year 2022/23 was in practical terms the earliest date on which LIS might have been able to commence its secondary stream.

60.The 2017 Consultancy Study was available online on EDB’s website.  Apparently this is the one referred to by EDB in its queries raised in the letter dated 9 March 2020 (see above), although it was not referred to by its formal name.

61.The 2017 Consultancy Study only projects up to the 2022/23 school year.  EDB has commissioned a new study in November 2020 which it is said will cover the projection of demand and supply for the school years from 2022/23 to 2028/29.

62.Notwithstanding that no new study has yet been produced, it seems that an SAE might nevertheless have been commenced or is contemplated.  This is because, in her affirmation, Ms Yau said that EDB had “not launched any SAE for international schools development since 2017 until recently”.

G.  The “Updated Situation”

63.A dispute has arisen between the parties as to what “Updated Situation” is actually referenced in the 18 May 2021 letter.  Mr Ng has heavily relied on the ambiguity about what this item was and (says Mr Ng) its non-disclosure.

64.Mr Ng submits that EDB only said for the first time in Ms Yau’s affirmation (at §§35-36) that the Updated Situation is said to comprise (a) the “Student Enrolment Survey 2020” which was said to be contained in EDB’s undated reply to LegCo’s queries (“the LegCo Reply”) and (b) the “Student Enrolment Statistics 2020/21”.  Mr Ng said these documents could not be the Updated Situation because they were never specifically referred to in the correspondence and were differently described from the Updated Situation.  He also points out that the Student Enrolment Statistics 2020/21, being published in July 2021, plainly post-dated the EDB Refusal, and the date of the LegCo Reply is unknown.

65.Mr Liu submits that the Updated Situation refers to the Student Enrolment Survey 2020 only, but not the Student Enrolment Statistics 2020/21.

66.Since there is dispute on what Ms Yau said in her affirmation, it is worthwhile to set out §§35-36, and to give them their context.  The paragraphs exist under a main heading that LIS was unable to substantiate that there was demand for secondary international school places. The first paragraph under that heading is §31, which states:

31.  Fundamentally, while it was suggested by the Applicant that there was a shortage of international school places in Hong Kong, in particular on Lantau Island, the findings of the latest consultancy study (i.e. the 2017 Consultancy Study) had shown that there would be no projected shortfall of international school places by the 2022/23 school year.

67.In other words, the ‘fundamental’ matter deployed in answer to LIS’s suggestion of unmet need was projection in the 2017 Consultancy Study.

68.Then, Ms Yau addressed further points under subheadings relating to: (a) the LIS’s 2020 Survey; (b) the example of a case of rejection for one of the students; (c) LIS’s location and other information provided by the LIS – immediately above and comprising §35; and (d) the Student Enrolment Statistics 2020/21 – immediately above and comprising §36.  Without including those subheadings, §§35 and 36 read as follows:

35.  … EDB could not conclude from the information provided by the Applicant that there was a new and unmet demand for international school places in Hong Kong.  In this particular case, taking into account the location of the Applicant and its application, EDB had taken a just and responsible approach in examining the additional information provided by the applicant, in particular information on the unmet demand for secondary school places and situation of their Primary six students when looking for places from other international secondary schools in Islands District.  EDB had invited the Applicant to provide concrete information to show the alleged unmet demand (for example, by way of a graduate survey or other information that the school may consider necessary and/or sufficient for EDB’s consideration, or otherwise), with a view to assessing EDB had also looked into the number of schools places offered (i.e. the supply side) and the number of students enrolled (i.e. the demand side) in Islands District in the 2020/21 school years, and was aware that there was surplus of around 100 international secondary school places available in the Islands District.  Thus, having assessed all the relevant facts based on the information available, including the findings of the parent survey conducted by LIS, EDB had come to the conclusion that a shortage of international school places was not substantiated.

36.  On top of the 2017 Consultancy Study, based on the results from the Student Enrolment Survey 2020, the overall provision of international school places and the number of students enrolled more or less stayed at the same level as the previous year.  The relevant overall-fill-up rate for the 2020/2021 school year is 89%; based on such information, EDB considered there were still vacancies of international school places in Hong Kong as at the 2020/2021 school year.  Such data was in the public domain, it had in fact been uploaded to the website of EDB.  There now produced and shown to me marked Exhibits “YSW-2” and “YSW-3” copies of EDB’s replies to questions posed by members of the Legislative Council and a document titled “Student Statistics, 2020/21” published on the web side of EDB respectively.

69.YSW-2 is the Student Enrolment Statistics 2020/21 and YSW-3 is the LegCo Reply.

70.It is not unfair for Mr Ng to have read YSW-2 and YSW-3 exhibited to §36 as the materials to which Ms Yau made reference in §35 as the extra materials that EDB had looked at to ascertain the supply and demand in the Islands District.  But in §55, Ms Yau did specifically say that the “Updated Situation” was a reference to the ‘Student Enrolment Survey 2020’.

71.The dispute perhaps arises from the slightly confusing drafting of §36, and some inconsistency in use of definition or description.  But reading the affirmation as a whole, I think Ms Yau’s evidence is that EDB looked into the data collected from the Student Enrolment Survey 2020, and those data (or some of them) had been subsequently compiled into the forms of the documents now exhibited as YSW-2 and YSW-3.  In any event, I agree with Mr Liu that since Ms Yau has affirmed in §55 that the Updated Situation refers to the Student Enrolment Survey 2020, there is no proper basis to challenge her.

72.On that basis, the perhaps understandable submission made by Mr Ng that Ms Yau was trying to “plug the gaps” in the original reasoning for the EDB Refusal probably falls away.  I accept, of course, that it is always necessary to be alert to the possibility that what is offered by way of explanation of the context of a decision can, even inadvertently, slide into the provision of a thought- or reasoning-process which was not actually conducted at the time.  But, with the clarification above, I do not think that is what is happening in this case.

73.Therefore, in so far as it is necessary to do so, I reject the suggestion that the content of Ms Yau’s affirmation is inadmissible in this regard.  Further, as the focus of the EDB consideration and the current challenge relates to the question of unmet demand, I do not think it necessary to be side-tracked into the other aspects (such as curriculum, accreditation and financial planning) touched on in the 18 May 2021 letter and canvassed by Ms Yau in her affirmation.

74.Ms Yau said in her affirmation that the Student Enrolment Survey is an annual exercise conducted by EDB at the commencement of each school year.  The purpose is to collect student enrolment related data from all schools for planning and administrative purpose.  She said there were stringent rules regarding data collection and processing to ensure the accuracy and reliability of the data.  Data from LIS was also collected.

75.The scope of the data collected from the Student Enrolment Survey 2020 is unclear.  But apparently both the Student Enrolment Statistics 2020/21 and the LegCo Reply only contain part of the data collected from the survey.  In the Annex 4 to the LegCo Reply, EDB stated that the data collected from the survey showed that there was a surplus of 105 places for secondary international schools in the Islands District for the 2020/21 school year.  The same Annex 4 shows that the number of secondary school places in the Islands District is 12.5% of the places in New Territories and just 2.4% of the total number of places territory-wide.

76.In passing, reference might also be made to part of the body of the LegCo Reply, which pointed out that there had been a decrease of about 510 secondary places among the international schools from the 2019/20 school year to the next school year 2020/2021, and then stated:

We expect the provision of international school places to increase progressively in the coming years with newly-established schools gradually implementing their admission schemes and individual schools planning expansion projects.  As at mid-March 2021, based on the latest projections provided by the relevant schools, compared to the 2020/21 school year, it is projected that around 1830 additional places will be available between 2021/22 and 2023/24 school years.  However, the future provision of additional places by individual schools, especially the new ones, will be affected by a number of factors, such as applications received each year, teacher recruitment, and school development.

77.First, it can be noted from the reference to the position “[a]s at mid-March 2021” that this Reply was unlikely dated earlier than the date of the EDB Refusal.  Secondly, it is of some interest that the Reply seems specifically to envisage new international schools as part of the provision of additional places between the 2021/22 and 2023/24 school years.  It is not clear from the context what “newly-established schools” the EDB had in mind, contemporaneously to refusing to provide policy support to LIS’s application specifically on the basis that there was no unmet demand as might justify newly establishing a school.

78.Further, even once the confusion is cleared up about the Updated Situation, it remains the case that, at the time of the EDB Refusal in March 2021: (1) the EDB could not have referred to the Student Enrolment Statistics 2020/21 document itself, because it was only published later in July 2021; (2) even if the data shown in it was internally available to EDB, it was not available to LIS; and (3) even if the undated LegCo Reply was produced before 10 March 2021 (which seems at least unlikely), its content was not drawn to the attention of LIS.

H.  Proposed grounds of review

79.Mr Ng advanced four grounds on behalf of LIS:

(1)  The decision making process of the EDB Refusal was tainted by procedural unfairness arising from the non-disclosure of the Updated Situation.

(2)  EDB fettered its discretion by adhering to the overly rigid policy that the provision of international school places be assessed on a territory-wide basis rather than a district-specific basis.

(3)  EDB failed to give adequate reason to explain why the Updated Situation should override the findings in LIS’s 2020 Survey. No explanation was given to explain why one should be preferred over another on a qualitative measure.

(4)  The EDB Refusal was irrational.  There was grossly insufficient evidence to show that there was no shortage of international secondary school places.  The 2017 Consultancy Study is tied to territorial-wide statistics and the Updated Situation is nowhere to be found.

I.  Ground 1: Procedural unfairness from non-disclosure

80.As said, there is no basis to doubt Ms Yau’s evidence that “the updated supply and demand situation of international secondary school places in Islands District” referenced in the 18 May 2021 letter is a reference to the data collected from the Student Enrolment Survey 2020.

81.But even proceeding on the basis that the Updated Situation is what EDB says it is, Mr Ng’s arguments remain good that this item was never disclosed to LIS before EDB reached its decision.  The “Update Situation” was raised for the first time in the 18 May 2021 letter.  There was no clue to suggest that it refers to the Student Enrolment Survey 2020.  Even when the 18 May 2021 letter was explained in evidence, it was explained by production of one document which did not exist at the material time, and another undated document of materials compiled for a different purpose for presentation to a different body (and which likely also did not exist at the material time), as well as it being unrealistic for LIS to have known that it was that document for which it should look.  The survey was not mentioned (at least not in name) to LIS in the correspondence.  As a factual finding, the Updated Situation (or the relevant data from the Student Enrolment Survey 2020) was not disclosed to LIS.

82.The principles on a complaint of procedural unfairness for non-disclosure of information, documents or material adverse to an affected person are well settled.  They are summarized in a number of often cited authorities, such as ATV v Communications Authority (No 2) [2013] 3 HKLRD 618, at §54:

(1)  The requirement of disclosing adverse document or information to the affected person is related to the right to be heard.  The right to be heard is worthless if the person involved does not know in adequate form what is being said against him.

(2)  Disclosing adverse documents or information is to allow that person to make meaningful representation to address the case against him.  The heart of a fair procedure is that the affected person should have a reasonable opportunity to respond to the adverse materials against him.

(3)  However, the extent of what fairness demands depends on the context of each case.  The scope of disclosure to the affected person of any adverse materials depends on the statute that creates the discretion, the prima facie relevance, credibility and significance of the evidence or the materials to the decision to be made, the nature of the relevant decision and its objective significance to the affected person, the existence of countervailing factors against disclosure, etc.

83.Reference can also be made to the points in the ATV case at §§59 and 64.  Similar points are made in the authorities cited by Mr Liu, such as R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 560D-G and 563F-G, and In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 at 603H-604F and 605H-606A.  The standards of fairness are not immutable, and they may change with the passage of time, both in the general and in the application to decisions of a particular type.  Similarly, principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.  Whether there exists a duty of explicit disclosure of the substance of the matters on which the decision-maker intends to proceed is necessary, and how far it goes and how far it should be performed, depend entirely on the circumstances of the individual case.  Insofar as there is a tension between the principal of fairness that a party should have an opportunity to answer adverse material and any contrary impulse towards confidentiality of sensitive personal information, that tension is to be resolved by the Court according to the circumstances of the individual case.  Further, Mr Liu is correct to emphasise that this case involves administrative decision-making, and that necessarily informs the relevant consideration in context.

84.Mr Liu submits that EDB plainly had no intention to hide anything from LIS.  The statistics to which EDB had regard are not controversial and have since been disclosed and uploaded to the EDB website.  Therefore, he submits, the more relevant question is whether EDB should have sought LIS’s view on this material – and Mr Liu suggest the answer is ‘no’, because LIS had already made meaningful representations on the question of unmet demand for international secondary school places.

85.Hence, the submission is that even if the Student Enrolment Survey 2020 was not disclosed to LIS, it does not fall foul of the general rule of procedural fairness.  Put in another way, fairness does not require disclosure of that particular piece of information or document to LIS. He also submits that the real, or main, basis for EDB’s view on the issue was based on the 2017 Consultancy Study.  The Student Enrolment Survey 2020 merely confirmed what was already projected in the 2017 Consultancy Study and EDB’s view.

86.Mr Liu also submits that what was contained in the Student Enrolment Survey 2020 was factual student enrolment data returned by the schools, and it is difficult to see what else might be usefully added by LIS except an attempt (which would be futile) to challenge its methodology.  In other words, having access to the Student Enrolment Survey would not help LIS in advancing its case and, therefore, the non-disclosure has no real prejudice on LIS.

87.I disagree.  By reference to the correspondence I have canvassed, the following chronology is apparent.  Initially, EDB’s view was based on the 2017 Consultancy Study, the thrust of which was drawn to the attention of LIS (though not by name).  But, having identified what the projection had been, the EDB specifically invited LIS to provide materials for its further consideration – both as to unmet demand, and to the related question of better servicing the local community. LIS did provide specific materials for that further consideration, on both points.

88.Leaving aside any question about the weight to be given to the results of the LIS’s 2020 Survey, perhaps depending on the level of response to it, at face value LIS had demonstrated some apparent real unmet demand.  Of itself, and of course specifically relating to the Tung Chung area, that must have called into question the continued reliability of the 2017 Consultancy Study projection, which by then was some years old.  In those circumstances, it is no surprise (and of itself not objectionable) that the EDB might have looked at more updated actual figures, which were apparently available to it internally.  Plainly, having done so, it relied on those figures.  The 18 May 2021 letter says so, and Ms Yau says so.  The very submission made by Mr Liu that the data in the Student Enrolment Survey 2020 was used to confirm the projected view in the 2017 Consultancy Report, and in effect to “trump” the results of the LIS’s 2020 Survey, seems to me to identify why as a matter of fairness that material ought to have been disclosed to LIS.

89.Indeed, the specific reference to the Islands District in the 18 May 2021 letter suggests that EDB must have also recognized that the Lantau Island may warrant some sort of district-specific consideration.  It can even be said that EDB must have tacitly agreed that LIS’s request could not be disposed of solely based on the lack of shortage in Hong Kong as a whole.  Otherwise, EDB would be accused of fettering its discretion by allowing the prevailing territory-wide policy to operate as a straightjacket in its decision-making process (which is denied by EDB in response to Ground 2).

90.In light of the development of matters through the correspondence, the issue as to unmet demand was being as regards Hong Kong generally, and to some extent as to Lantau Island.  By bringing in the Updated Situation into the formula, EDB was able to show that it gave genuine consideration to the particular case before it, rather than simply blindly following its prevailing territory-wide policy.  Indeed, Updated Situation could supplement – and seems to have been used by the EDB to provide – what might be said to be lacking in the 2017 Consultancy Study because the former could offer district specific data.

91.It could not be right that EDB should be allowed to, on the one hand, rely on the Updated Situation to show that it had turned its mind to the specific case before it rather than blindly following the policy, and yet to insist that it did not have to disclose that information or material to LIS in any form.  I also disagree that because the materials undisclosed to LIS were ‘hard facts’ therefore there was no prejudice to him in not disclosing them.  If the decision maker sees the adverse materials as fatal to the affected person’s case, all the more reasons those materials should be disclosed to him to allow a chance of response.

92.In conclusion, I would not only grant leave to apply for judicial review on Ground 1, that ground is made out on the substantive application.

93.However, whilst I agree that a valid complaint for non-disclosure is made out in this case, this does not necessarily lead to the quashing of the EDB Refusal, when it comes to the exercise of discretion as to whether to grant relief, and if so what relief.  I will return to this below.

J.  Ground 2: Rigid policy

94.Originally (and understandably), Mr Liu thought LIS deployed this ground not as a challenge to the policy itself, but as a complaint that EDB’s policy was applied too rigidly, fettering its own application of policy.  But at the oral hearing, Mr Ng made it clear that he was challenging the policy itself as being rigid, as well as that the policy was as a matter of fact applied rigidly.

95.As to what constitutes the “rigid policy”, Mr Ng focused on the policy as described by Ms Yau in §17(b)(i) and §19 of her affirmation.  However, Mr Liu argued that unfairly limited the description, and reference should also be made to §20.  It might be noted that §17 is in the section of the affirmation headed ‘Assessing demand and supply in the international school sector’, whilst §§19-20 is in the section headed ‘Policy support for the grant of STT’.  Further, because §19 makes reference back to §§17(b) and 17(c)(iv), I shall set out all those various paragraphs together, as follows:

17(1) (b)        In addition, it has been EDB’s practice to assess the provision of international school places at primary and secondary levels on a territory-wide rather than a district-specific basis.

(i)         As explained, international schools are private schools which operate on a self-financing and market-driven basis, and are autonomous in operation.  They may decide the curriculum offered, as well as admission criteria and arrangements.  Since international schools may decide their own student admission criteria and enrol children residing in any district in Hong Kong (i.e. there is no requirement on the place of residence of students in Hong Kong from EDB), it has been EDB’s prevailing policy that the provision of international school places at primary and secondary places at primary and secondary are assessed on a territory-wide basis, rather than a district specific basis.

(c)  In paragraph 13 of [LIS’s affirmation], the Applicant made some criticism against the 2017 Consultancy Study.  EDB’s specific response is as follows: …

(iv)       At paragraph 13(4), the Applicant questioned the relevance of such “territory-wide, broad brushed analysis” in deciding the demand and supply level in Islands District, in particular on Lantau Island.  As explained above, it has been EDB’s prevailing policy to ascertain the provision of international school places in Hong Kong on a territory-wide basis.  Nevertheless, EDB had given due regard to the Applicant’s claim that EDB should also take into account the location of the Applicant’s school when considering the subject STT application.  It is against such background that we had also considered the supply and demand situation in Islands District.  Noting there were a total of 105 secondary school places vacancies in Islands District in 2020/21 school year based on the results from the 2020 Student Enrolment Survey, we had no difficulty to conclude that there was no shortage of international school places even in Islands District alone.

19.  EDB’s fundamental consideration as to whether to give policy support is to ascertain if there is a shortage of international school places which would justify the direct grant of STT; it is the most important consideration in deciding whether policy support should be given; and if EDB notes a substantial shortage of international school places, EDB may consider launching SAEs.  Importantly, it has been EDB’s prevailing policy to ascertain the provision of international school places at primary and secondary levels in Hong Kong on a territory-wide basis, rather than a district-specific basis (see my explanations in paragraphs 17(b) and 17(c)(iv) above).

20.  On a case-by-case basis, EDB considers applications for the grant of STT according to the prevailing policy framework and assesses all relevant factors based on the information available.  …

96.Mr Ng submits that EDB has fettered its discretion by adopting an over-rigidly policy that the supply and demand of international school places are to be assessed on a territory-wide basis rather than a district specific basis.  Mr Ng says the policy was a strict one and does not admit exceptions to take into account of special features, for example in the present case that the intended location was a remote one in Hong Kong.  He says the policy guided the compilation of the 2017 Consultancy Study which in turn decided the EDB Refusal.  He further submits that even the grant of an occasional exception from the policy does not save the policy from being unlawfully rigid; a policy in absolute terms prohibiting any discretion could not be remedied by evidence that on occasions exceptions might be permitted.

97.In support of his argument, Mr Ng primarily relies on the cases of R v Warwickshire County Council ex parte Collymore [1995] ELR 217 and R (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner [2019] QB 251.

98.The Collymore case concerned the grant of discretionary awards for further education.  It was held (see 225E) that when exercising the relevant statutory power, the authority had been entitled to operate a general policy which would ordinarily govern its approach to applications for discretionary awards.  However, despite the general policy, the individual circumstances of each case required consideration before the general policy was applied to it.  On the evidence in the case, it was held (see 222G) that at all material times the policy of the county council in relation to the discretionary awards, following the advice of the solicitor to the Council Council, was that discretionary awards should not be made unless on review, an individual case could be regarded as exceptional.  Therefore, whatever the individual circumstances, every application for a discretionary award was automatically rejected – albeit that the notice of rejection gave written indication (in terms described at 223E as “not wholly encouraging”) that the applicant may seek a review.  In effect (see 225H), the process was to refuse each application and then to invite appeals by way of review in any cases where exceptional circumstances to justify an award were advanced.  However, it was also noted (see 223H) that on the facts of the case the reviews had all failed, and the judge found it rather difficult to imagine precisely what extreme circumstances might serve to persuade the authority that a discretion award would be appropriate.

99.Part of the challenge to the unlawfulness of the policy (see 224B) was that the policy by its terms permitted of no exception, and that the procedures introducing some discretionary element did not provide any remedy for the unlawfulness of the policy because (1) officials lacked proper authority to allow exceptions or set aside the council’s policy and (2) even if they were able to do so, they would be unduly influenced in their consideration of any individual case by the existence of the policy itself and would therefore be inhibited from giving each case the intention it merited.  But that challenge failed because the conclusion drawn from the evidence as a whole (see 226F) was that although the policy, generally, was to refuse applications for discretionary awards, an integral aspect of it was the review and appeal procedure.  Although in one sense that could be regarded as an exception to the overall policy, it was not an exception in the sense regarded as unacceptable, but rather the implementation of the principle that the policy should not be applied rigidly or inflexibly.

100.However, although the challenge to the policy itself failed, it was held (see 227H) that in practice the policy had been implemented far too rigidly and that, as a result, Miss Collymore’s application was not properly considered.  Therefore, even as regards what might be regarded as the somewhat extreme facts in the Collymore case, it was only the application of the policy, and not the policy itself, which was adjudged unlawful.

101.The Adath Yisroel case concerned a Coroner’s policy or protocol that no death would be prioritised in any way over any other because of the religion of the deceased or family.  Noting (at §77) the well-established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers, the Court concluded (at §87) that the relevant policy constituted an unlawful factor on the coroner’s decisions as to when and how to exercise her various statutory powers and for how long to retain custody of a body.  The Court accepted the submission that the policy as formulated imposed “a blanket rule” that the coroner would not take into account the circumstances of any individual family where they have a religious basis.  That would prevent the coroner taking into account a relevant consideration, contrary to the settled principles of law, and this would be so even though there would be limited or even no effect on her other work.  A policy is “over-rigid” if it precludes the decision-maker from taking any account of the individual circumstances of a particular case at all (see §88).

102.Mr Ng submits that the Adath Yisroel case “bridges the gap” between the Collymore case and the present case.

103.Mr Ng also refers me to Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp [2009] 5 HKLRD 620 which at §33 cited with approval the explanation given in De Smith’s Judicial Review at § 9-002 (now to be found in the 8^th edition, 2021) of the public law grounds against the fettering of a discretion, and why courts will scrutinise closely the conduct of a decision-maker in assessing whether or not he has unlawfully fettered his discretion, in the following way:

A decision-making body exercising public functions which is entrusted with discretion must not, by the adoption of a fixed rule or policy, disable itself from exercising its discretion in individual cases.  It may not “fetter” its discretion.  A public authority that does fetter its discretion in that way may offend against either or both of two grounds of judicial review: the ground of legality and the ground of procedural propriety.

104.But, as already stated, the principle that a decision-maker should not adopt a policy so rigid as to fetter his own discretion is well-settled, and Mr Liu does not argue to the contrary.  Rather, Mr Liu says that the policy and approach in this case do not offend the grounds as might give rise to judicial review.

105.It is perhaps slightly unfortunate that part of Mr Liu’s own written submissions seems to put the case perhaps a little too high.  His §16(3) states, in part:

The Applicant’s conclusion from its own survey that there is an unmet demand was simply not supported by the 2017 Consultancy Study and the Student Enrolment Survey 2020 even without taking into account the various deficiencies of the questionnaires (which were not available at that time).  In any event, the Applicant’s focus on district-specific demand only is inconsistent with the general policy of EDB on the assessment of demand of IS places on a territory-wide basis.  Unless and until the Applicant could establish that such EDB’s policy is unlawful or Wednesbury unreasonable [where at the time Mr Liu thought no such challenge was made], it is inevitable that the Applicant’s own survey focusing on Lantau only would not carry significant weight.

106.Put in this way, it tends to suggest the circularity in the point that the 2017 Consultancy Study is predicated on the territory-wide basis, whilst the EDB Refusal was based on the territory-wide basis as reflected in the projections in the 2017 Consultancy Study.  It also seems to suggest that local considerations would never carry any significant weight.  But, to be fair, his §18(1) makes the position rather more clear – and, to my mind, rather more in line with Ms Yau’s own evidence:

It is denied that a straitjacket approach has been adopted.  While EDB has all along applied a territory-wide basis to assess the demand for IS places for sensible reasons, it does not forbid EDB from taking into account district-specific considerations.  That said, the amount of weight given to such district-specific considerations is a matter for the Secretary subject to Wednesbury unreasonableness test.

107.As Mr Liu goes on to say, in handling the STT Application, the EDB had actually considered the supply and demand situation in the Islands District.

108.Earlier in this Judgment, I raised the query whether it is really possible ever to gain international school recognition or support outside an SAE initiated by the EDB itself.  This is because, if (as was the case) EDB has decided not to carry out an SAE, it means that it must have already concluded that there was no unmet demand.  Certainly, as regards any decision whether to carry out an SAE or not, it does seem that only territory-wide unmet demand is taken into account.  That may or may not be unnecessarily rigid, but that is not at issue in this case.  It might also be pointed out that it is no part of the Court’s function to set the relevant policy.

109.This case concerns what might be regarded more as an ad hoc application by reference to the STT Application.  In that context, I answered the query by stating that it seems more likely that EDB is willing to engage in some assessment – whether on a territory-wide or some other basis – of whether or not there is a shortage of places, notwithstanding that EDB has not itself thought there should be an SAE.  As I said, this has to be the case if the ways to international school recognition or support outside an SAE are to exist meaningfully as part of EDB’s policy.

110.Indeed, from the evidence, apparently EDB itself does not interpret the policy as an absolute one prohibiting any discretionary approach away from territory-wide considerations.  The first round of information sought by EDB from LIS included seeking information as to how the proposed school could meet the needs of the community, which suggests EDB did consider the impact on the geographical area local to the school.  In the second round of correspondence, the EDB also asked for a graduate survey of students from LIS (or other similar material) specifically to address the question of unmet demand, including locally.

111.The specific reference to the situation in “Islands District” in the 18 May 2021 letter is also proof that EDB does not and did not restrict itself to the territory-wide approach in an absolute manner. Though the EDB’s starting point was undoubtedly to look at territory-wide figures (as that is in line with its general policy), starting with the projections to be found in the 2017 Consultancy Study, the EDB nevertheless looked at more recent, and so “updated”, information which provided data both territory-wide and on a district-specific basis.

112.Therefore, I do not think that Mr Ng’s interpretation of EDB’s prevailing policy is substantiated.  I do not think the policy itself can be described, in the present context, as over-rigid.  I do not think the policy was overly rigidly applied.

113.Although I think I would have granted leave to apply for judicial review on Ground 2, the challenge on that ground fails on the substantive application.

K.  Ground 3: Failure to give reasons

114.Ground 3 seems to me to be closely linked to Ground 1, and at the hearing the link appeared to become common ground between Mr Ng and Mr Liu.

115.It may be useful first to consider the relevant principles in relation to the giving of reasons.  These principles are well known and are not disputed: see, for example, Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279.  In summary, the reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.  The reasons should show that the issues that arise for serious consideration have been considered.  But the reasons in any given case may not require great elaboration, and they may be brief.

116.Further, I think it fair to say that the giving of reasons in any individual case must be viewed in the context of that case. Hence, I think Mr Liu is correct when he says that the Court can have regard to the prior correspondence exchanged between the parties to determine whether the reasons given in the EDB Refusal are sufficient to meet the requirements of the principles.

117.Mr Ng also refers to Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, at §97 and Chow Oi Ting Amy v Housing Authority [2020] 6 HKC 270, at §35 in support of the submission that, that the since EDB purported to give reasons, it should be subject to the same level of scrutiny as if there was express duty to give reasons.  However, in this case, that does not appear to be the real battleground.  The real battleground is whether EDB has addressed the substantial issues and shown why it has come to its decision.

118.The substantial issues focused, as already discussed, on whether there was or would be a shortage of international secondary school places either in Hong Kong generally or on Lantau Island (and perhaps even more particularly in and around Tung Chung or South Lantau).  Mr Liu says that issue was plainly addressed, and adequately so.

119.Mr Ng submits that EDB did not give any reason at all to explain why LIS’s 2020 Survey should be overridden in favour of the Updated Situation the content of which was not disclosed to LIS. It seems to me that this is either a good submission or it is not, on the face of the 9 April email and 18 May 2021 letter (read in context).  Therefore, I do not need further to consider Mr Ng’s criticisms that Ms Yau has sought to offer “retro-reasons” in her affirmation.

120.First, I do not think there was really any reasoning at all in the 9 April 2021 email.  It simply said that consideration had been given to various aspects and that no policy support could be given.

121.There is also much to be said about the brevity of the reasons given and the 18 May 2021 letter.  On questions other than that of unmet demand, there was really no reasoning given, except the explanation as to why an assessment was conducted on those issues (not what reasoning was applied to or flowed from that assessment).  More relevantly for present purposes, the reasoning leading to the conclusion on unmet demand was also brief.  Besides a single reference to “the response rate of [LIS’s 2020 Survey]”, there is no other explanation why EDB seemed to give no or very little weight to LIS’s 2020 Survey.  For example, it does not expressly explain that EDB thought a response to questionnaires regarding 27% of students was insufficient to give any weight to it (even if one might guess that is what was in mind). It is also to be remembered that there had been no comment from EDB on LIS’s 2020 Survey at any point before the 18 May 2021 letter.

122.But what seems to me to be the fundamental problem arises from the failure to have given disclosure of data comprising the Updated Situation.  Once there was no disclosure of what that data comprised, it almost necessarily follows that there was no reasoning as to how the data was seen to provide the answer to or “trump” or counter or overbalance the results of the area specific LIS’s 2020 Survey.

123.Further, in practical terms, where reference is made to a number of pieces of material in a decision, the interaction between those various pieces is itself part of the reasoning.  For example, it may have been a reason to discount the LIS’s 2020 Survey because the Updated Situation did not seem to bear it out, or it may have been a reason to discount it because of the 27% response rate, or it may have been a combination of those reasons, or it may have been a combination of those reasons and other reasons.  Obviously, in context, any such reasoning was also missing from the 18 May 2021 letter.

124.I accept that sometimes the facts can speak for themselves without much need for elaboration.  LIS’s 2020 Survey was home-made, a simple questionnaire with 5 substantive questions, and one view might be that the response rate was low (though even that needs to be understood in the context of which students’ parents gave answers – and the fact that the overwhelming response was along a common theme).  It might be said that, in comparison, the 2017 Consultancy Study was prepared by a professional consultancy company to ensure the reliability and representativeness of the data, and the Student Enrolment Survey 2020 covered all schools and was also subject to some procedural safeguards to ensure the reliability and accuracy of the data.  I also accept that EDB probably need not offer a detailed evaluation of all materials or a qualitative comparison with other materials in the form of a written reasoning.

125.Therefore, it might not be difficult to see why EDB would prefer its own data and would give no or very little weight to LIS’s 2020 Survey.  But if that was the position, it could have said so.  In my view, fair and adequate reasons in this case required it to have done so.

126.This is perhaps particularly so when LIS had obviously tried its best to supply the information to EDB as soon as it could after EDB’s request.  LIS would likely have understood it did not have much time to commission a professional study or survey as the government did (whether it had the resources to do so, I do not know), or to conduct other surveys and the like.  On the other hand, LIS having provided its information, there was simply no response to it for 10 months.  Had LIS been told that it had several months to prepare materials to be considered in the context of unmet demand, it might not (probably would not) have limited those materials to a quick survey of parents by questionnaire.  It might also have sought a greater response even to the existing survey if it had known it would have time for that.

127.Further, LIS was clearly seeking to identify unmet demand for international secondary school places specific to its location and the parents and students it expected to attract.  It had been asked to do so, after having been pointed to the 2017 Consultancy Study (though not by name) which does not address district-specific demand and supply.  LIS would likely have understood that the projections from 2017 were not being put forward as necessarily determinative, perhaps because they were some years old and were not district-specific.  For the EDB Refusal to have been based on the 2017 Consultancy Study nevertheless, in addition to some undisclosed Updated Situation, seems to me as a matter of fairness to have required a properly reasoned explanation.

128.I bear in mind that the EDB Refusal was given in the context of giving or declining to give policy support to LIS’s STT Application with LandsD, which to some extent might justify the brevity of the reasoning.  But ultimately, I think that there was a failure to give adequate reasons essentially consequent on the failure of disclosure.

129.Hence, not only would I have granted leave to apply for judicial review on Ground 3, I would find on the substantive application that the ground is made out.

L.  Ground 4: Irrationality

130.LIS’s complaint is that there was insufficient evidence to support the impugned finding that there was no shortage of secondary international school places.

131.This ground could be disposed of quickly.  The finding of no shortage, whether on a territory-wide base or Islands District specific basis could not be criticized for being irrational in the public law sense.  The 2017 Consultancy Study and the Student Enrolment Survey 2020 were capable of supporting that finding.

132.Mr Ng suggests that a “holistic evaluation of demand and supply specifically for Lantau Island with proper consideration given to its special characteristics” would be required.  I am not sure exactly what that means, but it is not helpful in the assertion of irrationality. Whilst EDB should not fetter its discretion by strictly restricting itself to a consideration of supply and demand on a territory-wide basis only, the weight to be given to the special location features of a proposed school and how such feature should be taken into account is a matter for EDB to decide.  In the instant case, EDB has used the enrolment data from all schools in the Islands District as a yardstick to assess the supply and demand around the Lantau Island.  That is not irrational in the public law sense.

M.  Whether to Grant Relief

133.Among the four grounds advanced by LIS, I have found that there is valid basis to say that there was procedural unfairness arising from the non-disclosure of the Updated Situation, and the related failure to give adequate reasons.

134.The question remains, in the exercise of discretion, what relief if any to give.  That question seems to me to arise in the present context that significant time has passed since the original consideration, and any renewed consideration of the question would necessarily be on updated current and projected situations.

135.For example, the welcome page on the Islands District website emphasises the intended and likely growth of Tung Chung.  But also, following the impact of the Covid-19 pandemic on Hong Kong – and perhaps as may be particularly relevant to LIS’s position – on the aviation sector, where staffing changes may have had a knock-on effect on the local population, this may be something requiring renewed consideration which was previously unnecessary.  Further, anecdotally, there has been some significant movement of children between local and international schools over the last three years or so.  Of course, I have already noted the ongoing new consultancy study, which is aimed in part to predict the supply and demand of international school places up to near the end of this decade.

136.It may therefore be argued, and it is argued by Mr Liu, that there is no utility in quashing the EDB Refusal; to require the EDB to reconsider whether or not to give policy support would require consideration tantamount to dealing with the fresh application.

137.I see the force of that argument, and was originally attracted to it.  However, on mature reflection, I do not think it is correct.  Instead, I agree with Mr Ng that the proper and logical consequence of finding grounds for judicial review in this case (Grounds 1 and 3) is to quash the original decision which fell short of the requirements of public law.  Ordinarily, where a decision has been found to be flawed, it follows that the proper exercise of discretion is to quash it.  Indeed, a wrong should not go without a remedy except in limited and exceptional circumstances.  Further. ss Mr Ng put it, quashing the original decision and remitting the matter for further consideration may be two separate elements or matters.

138.But, it also seems to me to be correct to quash the original decision because the EDB Refusal was given in the context of the STT Application.  That application was rejected only because of the EDB Refusal which made it pointless for there to be any further consideration by LandsD.  Therefore, it seems to me that the correct relief to grant is that which allows that STT Application to be revived (in case there is some prejudice caused by the need to make a new STT Application).

139.Therefore, I quash the EDB Refusal.  I also remit the question of whether or not to give policy support to be remitted to the EDB for its renewed consideration.  However, as must be the case, but to avoid any doubt, I direct that the renewed consideration must be by reference to such updated materials as may now be produced by or available to the parties.  If that is somewhat equivalent to an entirely fresh exercise of policy support consideration, so be it.  But it will be a fresh exercise within the resurrected STT Application.

140.Further, whilst it is not for the Court to direct policy (which is a matter for the policy-maker), I would simply comment that, all other things being equal, it makes considerable sense to have firmly in mind the geography of Hong Kong when considering available international school places, and the various locations of those premises as compared to a growing town which might be thought to be a considerable distance from most other residential parts of Hong Kong.  However, the weight to be given to these matters against all other factors is not for me to suggest.

N.  Conclusion

141.I grant an order of certoriari to bring up and quash the EDB Refusal, and remit the question of whether or not to give policy support within the STT Application made by LIS to be remitted to the EDB for its renewed consideration, but direct that it be by reference to all and any updated materials as would be or become available to the parties.

142.As to costs, I see no reason why costs should not follow the event.  I order the EDB to pay LIS’s costs of these proceedings, to be taxed if not agreed.  Though I doubt they have been separately incurred, I make no order as to the costs of the interested parties.

Mr Ernest Ng, instructed by Ho Tse Wai and Partners, for the applicant

Mr William Liu, Senior Assistant Law Office (Civil Law) and Mr Aaron Lam, Assistant Law Office (Civil Law) (Ag.)), of the Department of Justice, for the putative respondent and the 1^st and 2^nd putative interested parties