Fok Ho Chiu v. The Chinese Temples Committee
Read the full judgment text of HCAL 13/2003 on BabelCite. This High Court CFI judgment was delivered on 26 September 2003.
1. This is an application for judicial review of the decision of the Respondent not to award the tender for the office of temple keeper of Shau Kei Wan Tin Hau Temple ("the Temple") to the Applicant.
Cited by 2 cases
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HCAL000013/2003 HCAL 13/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ____________
____________ Coram: Hon A Cheung J in Court Date of Hearing: 8 September 2003 Date of Judgment: 26 September 2003 _______________ J U D G M E N T _______________ 1.This is an application for judicial review of the decision of the Respondent not to award the tender for the office of temple keeper of Shau Kei Wan Tin Hau Temple ("the Temple") to the Applicant. 2.The Temple is one of the many Chinese temples in Hong Kong placed under the absolute control of the Respondent pursuant to section 7 of the Chinese Temples Ordinance (Cap. 153) ("the Ordinance"). 3.On 29 May 1990, the Respondent first appointed the Applicant to be the temple keeper (or "sz chuk", "司祝") of the Temple. Since then until 30 September 2002, the Applicant's appointment was renewed annually by the Respondent. In 2002, there were newspaper reports that a staff member of the Trust Funds, Temples and Cemeteries Section of the Home Affairs Bureau and a member of the Respondent were arrested for alleged bribery offences. On 5 June 2002, the Respondent resolved that appointment of temple keepers should be by open tender, and asked the Respondent's Secretariat to consult the ICAC to devise a proper set of rules for tender and appraisal. On 13 June 2002, the Respondent informed the Applicant in writing of the new arrangement and enclosed a tender form. The tender was to close on 28 June 2002. However, apparently as a result of suggestions from the ICAC, the intended tender was called off, and instead on 28 June 2002, the Respondent advertised a tender notice in the press inviting tenders based on a new tender procedure in relation to seven temples under the control of the Respondent, including the Temple. The tender notice reads as follows:
4.On the same day, a blank standard-form letter of intent to tender was sent to the Applicant, inviting the Applicant to participate in the new tender procedure. Amongst other things, the letter of intent deals with the new tender procedure thus:
5.On 15 July 2002, the Applicant and several other temple keepers of other temples wrote a joint letter to the Respondent complaining, amongst other things, the award of tender on the basis of tender price. The joint letter criticized the Respondent for letting by tender the office of temple keeper, "which completely ignored the contributions to the temples made by the existing temple keepers and caused management of a temple to become a business running". 6.That notwithstanding, on 17 July 2002, the Applicant submitted his letter of intent to the Respondent. 7.On 20 August 2002, the Permanent Secretary for Home Affairs replied to the letter of 15 July 2002 (and it is accepted by Mr Kenneth W H Ng, appearing for the Respondent, that the reply was written on behalf of the Respondent), explaining amongst other things, the new tender procedure. The letter reads in part as follows:
8.In the meantime, on 9 September 2002, the Applicant successfully attended the pre-qualified test, and was duly invited to submit his tender for the Temple. According to the evidence filed by the Respondent, there were altogether 42 candidates who had submitted letters of intent in respect of the seven temples in question. 37 of them attended the pre-qualified test, and 27 (including the Applicant) passed the test. So far as the Temple is concerned, amongst the 37 candidates who attended the pre-qualified test, eight were interested in tendering for the office of temple keeper of the Temple. Seven out of these eight candidates passed the pre-qualified test. All seven (including the Applicant) submitted their tenders. 9.Again according to the evidence filed by the Respondent, of the seven tenders submitted in respect of the Temple, the highest tender bid was $680,000.00. The Applicant's bid in the sum of $240,000.00 ranked fifth. At a meeting of the selection committee of the Respondent held on 23 November 2002, the selection committee accepted the highest tender on the basis that it was the highest bid, the selection committee having taken the view that all seven tenderers had passed the pre-qualified test thereby demonstrating their attainment of a certain level of knowledge and ability in temple management. The relevant part of the minutes of the meeting reads as follows:
10.On 4 December 2002, the Respondent informed the Applicant in writing that his tender was not accepted. Upon the Applicant's enquiry of the reason for the rejection of his tender, the Respondent replied on 10 December 2002 that his tender was not accepted because his tender price was not the highest. 11.The Applicant has since successfully obtained leave to apply for judicial review of the decision of the Respondent rejecting his tender. 12.According to the evidence, the highest bidder subsequently abandoned the tender, and the Respondent eventually approached the next highest and willing tenderer, whose bid was $480,000.00 for appointment as the temple keeper of the Temple. 13.However, as a result of the present proceedings, the appointment of a new temple keeper of the Temple has been held in abeyance pending the result of the present proceedings. As I understand it, the Applicant is still acting as the de facto temple keeper of the Temple. 14.Although a number of grounds are relied on in this application for judicial review, the Applicant's complaints boil down essentially to two points:
15.The preamble of the Ordinance says that the object of the Ordinance, enacted in 1928, is "to suppress and prevent abuses in the management of Chinese temples and in the administration of the funds of Chinese temples". 16.Mr Valentine Yim, appearing with Mr Benny Ho, for the Applicant, also invites the Court to look at the explanatory note set out in the 1928 Bill, describing the objects and reasons of the Bill, as to which Mr Ng does not raise any objection. 17.The more relevant part of the explanatory note reads as follows:
18.Against the above background, sections 2, 3, 7, 8 and 10 of the Ordinance read as follows:
19.According to Mr Ng, the actual procedure adopted by the Respondent was a two-stage process. At the first stage, i.e. the pre-qualified test, all intending tenderers' knowledge, experience and ability were tested by the selection committee, without the selection committee knowing the amount of their intending bids. Only those intending tenderers possessing knowledge, experience and ability acceptable to the selection committee would pass the pre-qualified test, and would be invited to submit their bids, which was the second stage of the process. At this second stage, the selection committee's focus of attention was on the tender prices. Since all tenderers possessed the requisite level of knowledge, experience, and ability, the only relevant criterion in choosing the successful tender was the price. At this second stage, the respective knowledge, experience and abilities of the tenderers would not be considered again. Mr Ng submits that this was fully in accordance with the procedure advertised in the tender notice and set out in the letter of intent both dated 28 June 2002. 20.Mr Yim however argues that at the second stage, it was wrong for the committee to ignore the respective knowledge, abilities and experience of the competing tenderers, and simply focus on the tender prices. Mr Yim says that this would frustrate the objects and reasons of the Ordinance, and turn the management of the temples into "purely business speculations". Mr Yim therefore argues that the Respondent, by adopting the two-stage procedure admitted by Mr Ng, has lost sight of the legislative purpose, and has thus erred in law; the resulting decision is liable to be quashed: Padfield v. Minister of Agriculture Fisheries and Food [1968] AC 997. 21.I do not accept Mr Yim's argument, despite the very attractive way that it has been presented by counsel. I accept that one of the objects and reasons of the Ordinance is to prevent the establishment of temples as purely business speculations. Temple keepers obviously play a very important role in the day-to-day management and running of temples. As has been recognized by the Respondent, on the evidence before me, the selection of temple keepers cannot be based solely on the tender prices, or the revenues that may be received by the Respondent from their appointment. Temples should not be run as purely business or commercial concerns for profit. The religious background of temples must be fully borne in mind and jealously guarded. To that extent, I am fully in agreement with Mr Yim's general observations regarding the appointment of temple keepers. 22.However, I cannot accept Mr Yim's further argument that the two-stage selection process actually adopted by the Respondent in the present case violated or ignored the above considerations. In my judgment, the knowledge, experience and ability, as well as the "genuineness" of the intending tenderers have been adequately tested and assessed at stage one of the process, i.e. the pre-qualified test, which was designed precisely to screen out those who did not have the requisite knowledge, ability and experience to run temples, and those who perceived the office more as a commercial or business opportunity than as a religious office or responsibility. 23.In my judgment, the material objects and reasons behind the Ordinance have been fully taken into account and taken care of at the first stage of the two-stage tender process. That being the case, I do not see any real criticism over the second stage of the process, which focused on the tender prices. Ex hypothesi, all the tenderers possessed the necessary knowledge, experience and ability and were genuine tenderers (in the sense explained above), as was demonstrated by their passing of the pre-qualified test. Everything being equal in that sense, there was, in my judgment, nothing wrong for the selection committee to focus solely on the tender prices at this second stage. 24.It is true that under this two-stage process, the selection committee may not necessarily have selected the best-qualified person to be the temple keeper, in terms of his or her knowledge, ability and experience. For it is trite that the tenderer of the highest bid may not necessarily have been the person possessing the greatest knowledge, experience and ability in the field. But in my judgment, this is no criticism at all in the present context. Nothing in the Ordinance, or the objects and reasons behind the Ordinance, and certainly nothing in section 10 empowering the Respondent to let by tender the office of temple keeper, requires the Respondent to only select the best qualified person in terms of knowledge, experience and ability to be the temple keeper. Section 10 gives the Respondent a very wide discretion. In my judgment, so long as the decision does not ignore or frustrate the objects and purposes of the Ordinance, it cannot be described as being unlawful or illegal. 25.In the present case, it is perfectly legitimate, in my judgment, for the Respondent to adopt a tender procedure which first requires a tenderer to demonstrate a minimum standard of knowledge, experience and ability and a sufficient degree of religious (as opposed to commercial/business) sincerity in tendering for the job, which is to be determined by the pre-qualified test, and then seeks to generate the highest revenue for the Respondent by choosing the highest tender bid amongst those put in by the qualified tenderers. In that way, both the quality as well as the revenue to be generated from the office are guaranteed. 26.As has been put, perhaps rather bluntly, during the hearing, the Ordinance does not prohibit the Respondent from choosing a mediocre (yet sincere and able-enough) temple keeper, if he or she is able to bring in the highest revenue to the Respondent in terms of his or her tender price; there is no law requiring the Respondent to choose the best-qualified temple keeper. 27.For the sake of completeness, I should add that no reliance is placed on Wednesbury unreasonableness in the present application, which is therefore not in issue. 28.In conclusion, I reject the Applicant's first argument. 29.Turning to the Applicant's second argument based on the doctrine of legitimate expectation, Mr Ng does not dispute that the doctrine may apply in the present case. Mr Yim says that this is a case of procedural legitimate expectation. He relies on that part of the letter of reply written on behalf of the Respondent on 20 August 2002, which has been extracted above, as basis for the legitimate expectation in question. In essence, Mr Yim argues that the extracted portion of the letter clearly says that not only knowledge, experience and ability would be considered at stage one of the tender process (i.e. the pre-qualified test), the same would also be considered at stage two of the process when the selection committee would consider the respective competing tenders from those who had passed the pre-qualified test. Mr Yim therefore argues that the actual procedure adopted by the Respondent, as admitted by Mr Ng, did not follow the procedure represented in the letter of 20 August 2002. Thus, the doctrine of legitimate expectation is engaged. 30.Mr Ho does not accept that the relevant part of the letter means that at stage two of the process, the knowledge, experience and abilities of the tenderers would be considered again by the selection committee. In any event, Mr Ho argues that the procedure represented in the letter is ambiguous, and it is not sufficiently clear and unambiguous to found a legitimate expectation: Ng Siu Tung v. Director of Immigration [2002] 1 HKLRD 561, 603-604 (paras. 103 and 104) (a case on substantive legitimate expectation). 31.I do not agree with Mr Ng's submission. In my judgment, on a fair reading of the letter of 20 August 2002, the procedure represented to the Applicant and his fellow temple keepers was that the knowledge, experience and abilities of the tenderers would be considered both at the pre-qualified test stage as well as the second stage. Not only is this clear from the sequence of the two most important sentences in the letter which dealt firstly with the pre-qualified test and secondly with the tender prices (i.e. "參加者首先要順利通過資格評核試，才會被邀請出價投標個別廟宇。遴選委員會會考慮及比較各參加者的條件如管理能力及知識等，然後才考慮標價。"); the use of the phrase "遴選委員會會考慮及比較各參加者的條件如管理能力及知識等" could only be, in the context, a reference to the second stage of the process. This is because according to the evidence, at the pre-qualified test stage, there was no question of the selection committee "comparing" (比較) the respective knowledge, experience and abilities of the intending tenderers. All that the selection committee was concerned with at the pre-qualified test stage was, according to the evidence, that the particular intending tenderer possessed the requisite or minimum standard of knowledge, experience, ability and sincerity to become a temple keeper. It was not concerned with comparing those qualities of the intending tenderers inter se. From the evidence, it is obvious that it was only at the second stage that one could meaningfully talk about comparing the respective knowledge, experience and abilities of the tenderers amongst themselves, in order to arrive at a decision on the successful tender. 32.Thus analysed, I have no doubt that the correct interpretation of the representation made on behalf of the Respondent, which is a matter for the court (see Ng Siu Tung, at p. 627, para. 194), is the one contended by Mr Yim. In other words, there has been made a clear and unambiguous representation on behalf of the Respondent that the knowledge, experience and abilities of the tenderers would be taken into account by the selection committee of the Respondent not only at the pre-qualified test stage but also at the tender stage. In my judgment, that is sufficient to found an argument based on legitimate expectation. This was a statement of procedure represented by the Respondent to the Applicant and his fellow temple keepers. As analysed above, this was not a necessary procedure to follow in order not to frustrate the objects and purposes of the Ordinance. However, there was nothing to stop the Respondent from adopting such a procedure, in the light of the very wide discretion given by section 10 to the Respondent in relation to the appointment of temple keepers. And once that specific procedure was represented and promised by the Respondent to the Applicant and his fellow temple keepers, in the absence of special circumstances, that promise had to be kept. 33.Mr Ng argues that the doctrine of legitimate expectation would only operate to affect a decision if there was unfairness. He argues that although the letter of 20 August 2002 which contained the relevant representation was sent to the Applicant prior to his submitting his tender, there is no evidence from the Applicant that his tender was affected by the representation contained in the letter. Therefore Mr Ng argues that no unfairness resulted from the Respondent's departure from the represented procedure in carrying out the second stage of the tender process. 34.Mr Yim does not accept that unfairness must be present in order for the doctrine of legitimate expectation, particularly in the case of a procedural legitimate expectation, to operate. He refers me to R v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299; R v. Governors of the Sheffield Hallam University, ex parte R [1995] ELR 267; and R v. North & East Devon Health Authority, ex parte Coughlan [2001] QB 213, in support of his proposition. 35.For the purpose of deciding the present application, I need not express any definite view on the matter. In my judgment, the argument of Mr Ng fails on the facts. First, the lack of unfairness focused on by Mr Ng only represents part of the picture. It is the Applicant's case that the Respondent, in accordance with the represented procedure, ought to have taken into account and compared the respective knowledge, abilities and experience of the tenderers at the second stage of the tender process, before deciding on the successful tender. That was not done. Mr Ng accepts in submission that he is unable to say on the evidence that even if the Applicant's knowledge, ability and experience had been taken into account by the selection committee of the Respondent at stage two, his tender would nonetheless have been rejected. Mr Ng expressly disavows the intention of running such an argument. In those circumstances, it must have been unfair to the Applicant when the selection committee of the Respondent departed from its represented procedure and failed to take into account the Applicant's knowledge, ability and experience in the field and to compare the Applicant's knowledge, ability and experience with that of his competitors, before deciding to reject the Applicant's tender. 36.Secondly, I am of the view that on the evidence, and given the general circumstances of the case, it is legitimate to draw the inference that the tender price of the Applicant which was submitted after the representation made in the letter of 20 August 2002, must have been affected by the representation that the tender would not only be judged by reference to price but also the knowledge, ability and experience of the individual tenderer at stage two of the process. After all, in paragraph 42 of the Applicant's Form 86A, the factual contents of which were confirmed by the Applicant's supporting affirmation, the Applicant specifically said that the decision of the Respondent rejecting his bid was "contrary to the Applicant's legitimate expectation and thus it was unfair to the Applicant". Paragraphs 44 and 45 went on to set out the representation made to the Applicant on behalf of the Respondent in the letter of 20 August 2002. Read in its entirety, in my judgment, it is legitimate and reasonable to draw the inference that the Applicant was there complaining, amongst other things, that the represented procedure had affected the tender price he submitted to the selection committee, and thus it was unfair not to follow the represented procedure. In my judgment, that is only a very natural and obvious inference to draw. It accords with commonsense. 37.For these reasons, I also reject Mr Ng's argument that the element of unfairness, if it must be present in the present context, is absent here. In conclusion, I am of the view that the doctrine of legitimate expectation applies in the instant case. By not following its own represented procedure, the Respondent has violated the Applicant's legitimate expectation in the matter, and in the absence of any special circumstances, the resulting decision of the Respondent is liable to be quashed. 38.So far as special circumstances are concerned, none has been suggested. The highest and willing bidder, despite his obvious knowledge of the present proceedings, has not sought to be joined as a party to these proceedings. In any event, in my judgment, any prejudice to the highest and willing bidder would be "false" in the sense that if the Respondent had followed its represented procedure in the first place, there would be no guarantee that such a highest and willing bidder would necessarily have been successful in the tender. Disturbing the tender result would not have the effect of taking away something that the highest and willing bidder (or indeed any other bidder) could say for sure that it would have had if the Respondent had followed its promised tender procedure. After all, as was specifically set out in the tender notice, the Respondent reserved to itself the absolute discretion in appraising the tenders and determining the result (which was only subject to the subsequently represented tender procedure). 39.Having considered the entire circumstances of this case including the specific matters discussed above, I have come to the conclusion that the decision of the Respondent, rejecting the Applicant's tender, should, in the exercise of my discretion, be quashed on the ground of legitimate expectation only. Apart from quashing the decision, both sides agree that the Respondent should be directed to carry out the stage two tender process again. I should, however, add that during submission, there were suggestions made to the effect that it is indeed open to the Respondent, before actually conducting the second stage of the tender process again, to undo, as it were, the legitimate expectation of the Applicant and his fellow tenderers (who are qualified to take part in the second stage tender process), by retracting clearly and with sufficient notice to the Applicant and all those concerned, the previously represented procedure and by making it clear to them that in the new stage two tender process, only the tender prices will be considered by the Respondent, the intending tenderers having all passed the pre-qualified test. Mr Yim seems to have accepted in submission that it would be possible as a matter of principle and in accordance with the law on legitimate expectation for the Respondent to undo the legitimate expectation in the way suggested above. Whether the Respondent would seek to undo the legitimate expectation arising from the letter of 20 August 2002 is of course a matter entirely for the Respondent to decide, and whether any such attempt, if made, would be successful is yet another matter. There is thus far nothing on the table, and I should not be taken as having expressed any opinion, let alone definite opinion, on the matter. 40.In conclusion, I order that the decision of the Respondent made on 23 November 2002 and communicated to the Applicant by letter on 4 December 2002 rejecting the Applicant's tender for the office of temple keeper of the Temple be brought up and quashed. I further direct, by consent, that the Respondent do carry out the second stage of the tender process again in respect of the letting of the office of temple keeper of the Temple. 41.Finally as regards costs, I make a costs order nisi that the costs of and occasioned by these proceedings be paid by the Respondent to the Applicant, such costs to be taxed if not agreed. Unless either party applies to vary this costs order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period. 42.Lastly, I would like to thank counsel for their helpful assistance.
Representation: Mr Valentine S T Yim and Mr Benny Ho, instructed by Messrs Lee, Chan & Cheng, for the Applicant Mr Kenneth W H Ng, instructed by Messrs Wilkinson & Grist, for the Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other judgments that cite this case
Further hearings and rulings under HCAL 13/2003