Wong Yui Hin James v. Hong Kong Arts Development Council
Read the full judgment text of HCAL 57/2003 on BabelCite. This High Court CFI judgment was delivered on 9 September 2004.
1. The Venice Biennial, a world-renowned visual arts exhibition, was first held in 1895. The biennial exhibition attracts participants from around 50 cities and countries. The Hong Kong Arts Development Council, the Respondent in the present proceedings, took part in the 49th Venice Biennial in the name of "Hong Kong China" for the very first time in 2001. It was a success. In March 2002, the Council endorsed Hong Kong's continued participation in the 50th Venice Biennale 2003, which was to be h
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HCAL000057/2003 HCAL 57/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS NO. 57 OF 2003 ____________
____________ Coram: Hon A Cheung J in Court Dates of hearing: 28 and 29 June 2004 Date of judgment: 9 September 2004 _______________ J U D G M E N T _______________ Facts 1.The Venice Biennial, a world-renowned visual arts exhibition, was first held in 1895. The biennial exhibition attracts participants from around 50 cities and countries. The Hong Kong Arts Development Council, the Respondent in the present proceedings, took part in the 49th Venice Biennial in the name of "Hong Kong China" for the very first time in 2001. It was a success. In March 2002, the Council endorsed Hong Kong's continued participation in the 50th Venice Biennale 2003, which was to be held from June to November 2003. 2.To take part in the exhibition, the Council set up a steering group to plan and coordinate administrative tasks such as policy formulation, site selection, project supervision and evaluation. One-third of the members of the steering group were also members of the Council. Besides, a selection panel was also formed to select the curator of the Hong Kong exhibition. The selection panel comprised distinguished arts professionals. In due course, a document entitled "Participation in the '50th Venice Biennale' (Visual Arts) Invitation for Exhibition Proposal (Application Guidelines)" ("the guidelines") was prepared and approved by the Arts Promotion Committee of the Council. On 20 November 2002, the Council published the guidelines, inviting all interested art organisations and independent curators to submit exhibition proposals to compete for the curatorship of the event. 3.The more relevant parts of the guidelines read as follows:
4.The Applicant is a local visual artist who is, according to one of the adjudicators comprising the selection panel, "a good artist whose work is close to the community and the society [and who] is very active in social and political arts". 5.He submitted his application on 2 January 2003. 6.According to the evidence filed by the Applicant for the purpose of the present proceedings, his proposal was prepared on the basis that the size of the Hong Kong Pavilion would be about 3,500 sq. ft., with an acceptable range of deviation of ±500 sq. ft. (i.e. between 3,000 and 4,000 sq. ft.). 7.However, unbeknown to him, even before he submitted his application, the steering group had decided at a meeting held on 7 December 2002 that a site (known as the "Arsenale warehouse site"), of about 1,000 sq. ft. in area, would be the steering group's first choice. That preference was confirmed by the steering group in its subsequent meeting held on 18 December 2002. 8.According to the disclosed documents, the Applicant's proposal was assessed by the selection panel between 11 and 15 January 2003. On 16 January 2003, the selection panel interviewed the short-listed applicants. The Applicant was not amongst those short-listed by the panel for interview. 9.The Applicant learned, as was indeed the case, that during the interviews, the selection panel indicated to the short-listed applicants that the venue would be of a size of about 1,000 sq. ft. only, which was less than 1/3 of the size of the venue in the last exhibition referred to in the guidelines. 10.On 18 and 21 January 2003, the Applicant who was aware that he had not been short-listed, wrote to the Council complaining about not being informed of the substantial change in size of the venue, which, according to the Applicant, would have materially affected his concept and proposal. 11.On 22 January 2003, following further interviews with the short-listed applicants, the selection panel unanimously chose from amongst the interviewees the successful applicant (Para/Site Art Space Limited - "Para/Site") for the approval of the Arts Promotion Committee under the Council. 12.On 30 January 2003, the Council by letter informed the Applicant that his proposal had not been selected by the selection panel. 13.On 31 January 2003, the Arts Promotion Committee approved the recommendation of the selection panel. 14.On 28 February 2003, the Council's steering group wrote to the Applicant in reply to his earlier letters regarding the downsizing of the venue. 15.Pursuant to the appeal procedure set out in the guidelines, the Applicant wrote to appeal on 28 February 2003. On 4 March 2003, the Council acknowledged receipt of the Applicant's appeal letter. In the Council's reply, an application form for appeal was attached and the Applicant was requested to provide details of his grounds of appeal and return the form to the Council. 16.On 13 March 2003, before the Applicant returned to the Council his completed form for appeal, the Council held a press conference announcing to the public that Hong Kong would participate in the 50th Venice Biennale and Para/Sit had been selected as the curator of the Hong Kong exhibition. 17.On 19 March 2003, the Applicant submitted his completed form for appeal to the Review Committee under the Council. The Applicant complained, amongst other things, that the Council did not follow its own guidelines by substantially deviating from the size of venue set out in the guidelines. 18.By letter dated 7 April 2003, the Review Committee informed the Applicant of the dismissal of his appeal. The Review Committee wrote (as per the certified translation):
19.On 30 April 2003, the Council signed an agreement with Para/Site in respect of the exhibition in the 50th Venice Biennale. Pursuant to the agreement, the latter took part in the Biennale as Hong Kong's representative in the latter part of 2003. Application for judicial review 20.On 30 April 2003, the Applicant applied for legal aid for applying for judicial review against the decisions of the Council. On 6 June 2003, whilst his application for legal aid was still pending, the Applicant made an application in person for leave to apply for judicial review, no doubt in order to beat the 3-month time limit for making an application for leave. His application was initially unsuccessful. 21.On 4 July 2003, legal aid was granted. Based on an amended form 86A prepared by counsel, the Applicant successfully obtained leave to apply for judicial review from the Court of Appeal on 9 October 2003. By then, the 50th Venice Biennale was in its last month. It officially ended on 2 November 2003. 22.In this application for judicial review, the Applicant seeks a declaration that the decision of the selection panel communicated to him by letter dated 30 January 2003 rejecting his application for curatorship was unlawful, a declaration that the decision of the Review Committee of the Council communicated to him by letter dated 7 April 2003 dismissing his appeal was unlawful, and damages based on the breach of a contract - the Applicant argues that there was made a contract between him and the Council when he submitted an application pursuant to the guidelines issued by the Council competing for the curatorship. 23.At the substantive hearing of the application for judicial review, counsel for both parties argued on several distinct issues raised by the application. I will deal with the issues in turn. Amenability to judicial review 24.The first issue is the amenability of the two decisions of the Council to judicial review. This brings me conveniently to the Hong Kong Arts Development Council Ordinance (Cap. 472) under which the Council has been established. 25.According to the preamble, the Ordinance was enacted:
26.Section 3(1) of the Ordinance provides for the establishment of the Council as a body corporate. Section 3(3) of the Ordinance sets out the composition of the Council, which consists of a chairman, a vice-chairman and not more than 22 other members appointed by the Chief Executive, together with the Secretary for Home Affairs or his representative, the Director of Education or his representative and the Director of Leisure and Cultural Services or his representative. The section also provides for the nomination of up to 10 persons from various artistic fields in Hong Kong, as members of the Council. 27.Section 3(7) provides that the members of the Council are the governing body of the Council and shall, in the name of the Council, manage the affairs of the Council and exercise the powers conferred on the Council under the Ordinance. Subsection (9) provides that the Council is not a servant or agent of the government and does not have the status, immunities or privileges of the government. 28.Sections 4 and 5 of the Ordinance provide for respectively the functions and powers of the Council. They read as follows:
29.Section 7(1) of the Ordinance gives the Council the power to delegate in writing any of its functions, powers or duties to any person or committee. Paragraph 7 in the schedule to the Ordinance provides for the establishment of committees:
30.Section 8 of the Ordinance provides for the provision of financial assistance to the Council out of money appropriated by the Legislative Council. 31.As mentioned above, the Arts Promotion Committee is a committee established by the Council. The Review Committee, which was charged with the duty of deciding appeals under the guidelines, is a standing committee established by the Council pursuant to its power under the Ordinance and the schedule. Both the steering group and the selection panel were ad hoc sub-committees formed by the Arts Promotion Committee. 32.It is common ground that the Council is a public body. But it is accepted that not every decision of a public body is amenable to judicial review. In Matteograssi SpA v. The Airport Authority [1998] 2 HKLRD 213, 219C, Mortimer V-P said:
33.In Ngo Kee Construction Co. Ltd v. Hong Kong Housing Authority [2001] 1 HKC 493, Cheung J (as he then was), after a thorough review of local and overseas authorities, set out the relevant principles, with particular reference to the Housing Authority (the decision of which was under challenge in that case), at pp. 506D to 507C, as follows:
34.In Lee Shing Yue Construction Co. Ltd v. Director of Architectural Services [2001] 1 HKLRD 715, Hartmann J said (at pp. 727E/F - 728B):
35.In my judgment, it is important to bear in mind the function performed by the public body in the decision made by it, which is under challenge. The closer the function in question is to the main or substantive statutory function of the public body for which it has been established in the first place, the more likely that the decision is amenable to judicial review. Conversely, if the function performed under the decision is merely incidental or ancillary to the main or substantive statutory function of the public body, it is less likely that the decision is amenable to judicial review. 36.Another relevant consideration is whether the decision or the underlying function that the making of the decision performed has statutory underpinning. Here, I do not accept Mr Lo's argument (on behalf of the Council) that the absence of statutory underpinning necessarily means that the decision is not amenable to judicial review. It is true that sometimes the legislation would set out the criteria for making a decision or provide for a procedure for the making of a decision by a public body (which may also include an appellate procedure). In such a case, it is easier to argue that the decision is amenable to judicial review. However, I do not think that that is an invariable requirement. As has been explained by Hartmann J in Lee Shing Yue Construction Co. Ltd, what is more important in the present context is the function being performed by the body whose decision is being impugned, rather than the formal source of power. 37.As has been emphasised by the authorities referred to above, if the decision is a commercial one, it is unlikely to be amenable to judicial review. On the other hand, if fraud, corruption or bad faith is alleged, then even a commercial decision by a public body may be amenable to judicial review. 38.On the facts of the present case, bearing in mind in particular the statutory functions and powers of the Council under the Ordinance, the nature of the Venice Biennale exhibition, and the reasons, objectives and aims of the Council's participation in the event, I have no doubt that the decisions made by the Council in selecting Hong Kong's representative to the event, for the purpose of receiving the relevant grant from the Council, are decisions that are amenable to judicial review. 39.In this regard, I particularly bear in mind section 4(b) concerning the implementation of strategy for the development and promotion of the arts, section 5(2)(j) regarding the disbursement of grants to organisations and individuals for the development and promotion of the arts, and section 5(2)(k) regarding collaboration and facilitation of cultural exchanges with organisations in places outside Hong Kong in the development of the arts and to secure the benefit of relevant experience from places outside Hong Kong, and the encouragement and support of others to do so where considered appropriate by the Council. In my view, they were functions performed by the Council under the decisions under challenge. 40.I do not view the decisions as involving performance of functions merely incidental or ancillary to the main or substantive statutory functions of the Council. Rather, in my judgment, the functions performed under the decisions went to the main or substantive statutory functions of the Council. 41.I do not regard the decisions in question as being commercial in nature. Whilst the grant was meant to cover, amongst other things, the curator's fee, and the successful curator was permitted, with the approval of the Council, to seek commercial sponsorship for its participation in the event, as a whole what was involved was far from commercial in nature. To the contrary, it was very much an endeavour in the arts. 42.Classifying the competition or invitation for applications embodied under the guidelines as a "tendering" process, as Mr Lo at the hearing sought to do, does not really take the matter anywhere. Of course, depending on the facts, the fact that the decision related to a tendering process might indicate that the decision in question was purely commercial in nature and thus is not amenable to judicial review. However, that is not always true. A public body could well be performing a statutory function and making relevant decisions that are amenable to judicial review even if the decisions involved tendering or other forms of commercial procedure. Thus the selection by tender of the temple keeper of a Chinese temple under the management of the Chinese Temples Committee under the Chinese Temples Ordinance (Cap. 153) did not prevent the decision from being amenable to judicial review: Fok Ho Chiu v. The Chinese Temples Committee HCAL 13/2003 (26 September 2003). Quite contrary to Mr Lo's argument, sometimes it is very important to look at the substantive function performed by the public body under the decision in question, rather than the procedure adopted (whether statutorily underpinned or not), in order to decide whether the decision involved is amenable to judicial review. 43.On the facts of present case, the functions performed through the decisions related directly to some of the main or substantive functions and powers of the Council under the Ordinance. The situation can be easily contrasted with a (hypothetical) decision made by the Council for the renovation of the Council's office premises, whether through a tendering process or not, or for instance, the retaining by the Council of a contractor to renovate the exhibition venue for the purpose of participation in the Biennale event. In these hypothetical examples, the decisions of the Council would be more akin to the keeping of the contractors' list by the Hong Kong Housing Authority in Ngo Kee Construction Co. Ltd. 44.On the other hand, the selection of the curator in the exhibition representing Hong Kong in the event would be more analogous to a decision of the Hong Kong Housing Authority allocating accommodation to competing applicants, borrowing from one of the examples cited by Cheung J in the passage extracted above. 45.For all the above reasons, I am of the view that the decisions under challenge are amenable to judicial review. Size of the venue 46.The next issue relates to the size of the venue. I have already extracted above the relevant parts in the guidelines including the so-called "background information" (of the guidelines). There can be no doubt that the background information formed part of the guidelines. 47.On a fair and reasonable reading of the relevant parts of the guidelines, and in particular paragraph 3 of the background information, there can be no doubt that the guidelines were representing that the venue for the Hong Kong exhibition in the 2003 event would be of a size comparable to that in the preceding exhibition, namely about 3,500 sq. ft. To be fair to Mr Lo appearing for the Council, he did not seriously suggest that the guidelines should be read otherwise. But counsel did lay emphasis on the fact that the guidelines said specifically that the venue had not been confirmed. 48.The Applicant has in his earliest letter to the Council set out the importance of the size of the venue to an applicant's proposal. He wrote:
49.It is true that in the proposal of the Applicant, he stated that "there is only a rudimentary plan for the work to be displayed in the exhibition due to the unknown exhibition space of which plays an important part for the consideration of exhibits". However, he explained what he meant by that and elaborated on the importance of the size of the venue to his proposal in paragraphs 15 and 16 of his 4th affirmation thus:
50.What the Applicant had asserted regarding the general importance of size has not really been challenged by counsel on behalf of the Council at the hearing, save to the extent that the Council maintained that an experienced curator should be able to cope with contingencies such as a sudden reduction of the available exhibition space. Indeed this was what the steering group said in its letter dated 28 February 2003 written in reply to the Applicant's letter of complaint. In the letter, the steering group wrote:
51.In the evidence filed on behalf of the Council in these proceedings, the Council sought to down play the importance of the size of venue in the mind of the selection panel. It was suggested that the panel's relevant questions regarding the adaptability of the short-listed proposals to a substantial down-sizing of the venue available to 1,000 sq. ft. were merely questions designed "to test ... [the short-listed applicants'] ability as curators to handle contingencies without adversely affecting the presentation of the concept and ideas behind their exhibition proposals" (bundle A, pp. 118-119) and they were asked on a "what if" basis. But in my judgment, there can be no doubt, on a fair and reasonable reading of the minutes of the steering group as well as the transcripts of the interviews, that the size of the venue was a material and important concern to the panellists. 52.That this should be so was only natural. The steering group had decided, no doubt for very good and legitimate reasons, that the Arsenale warehouse site, of a size of about 1,000 sq. ft., was the first choice in terms of venue. Yet, the guidelines had earlier represented (as analysed by me above) that the venue would be in the region of 3,500 sq. ft. (like that of the preceding exhibition). Understandably, the competing proposals were prepared on that basis, which was no longer valid. Given (as the Applicant has detailed in these proceedings) the importance of the size of the venue to a proposal, it was only natural and understandable that the selection panel should be concerned in the selection process about the adaptability of the proposals to the most likely venue (which was only of a size of 1,000 sq. ft.) - although nothing had been confirmed. I do not accept any attempt in the evidence filed to down play the significance of the size of the venue in the selection process. 53.It is true that in the printed assessment forms used by the selection panel in the first round of selection and marking of the competing proposals (including the proposal of the Applicant), it was expressly stated that "since information of the exhibition venue has not been notified, the use of venue should not take into account of the assessment". Yet on a fair reading of the evidence as a whole, the likely size of the venue (based on the steering group's first choice) must have been a relevant and material consideration in the mind of the selection panel even in the initial round of selection comprising only paper-marking. Notably, no evidence from members of the selection panel has been filed on behalf of the Council to deny the relevance or importance of the likely size of the venue (of about 1,000 sq. ft. only) in the mind of the panel. Deviation from the guidelines 54.In my judgment, the selection process has deviated from the guidelines, in terms of the represented region of the size of the venue. It was a material deviation. Although the choice of the smaller venue (as the first choice) was made back in December 2002 prior to the close of applications, no effort was made to correct (or at least to retract) the information supplied in the guidelines. Yet, quite obviously on the evidence, the selection process proceeded on a likely size of the venue based on the first choice of the steering group. That nothing was confirmed until after the successful candidate had been selected is, in my judgment, really neither here nor there. 55.In those circumstances, a material part of the guidelines has been ignored in the selection process. Instead, a consideration, that was extraneous and contradictory to what had been represented in the guidelines, was taken into account and given significant weight by the selection panel in the selection exercise. 56.In my judgment, all this led to unfairness. Of course, I agree that guidelines constitute "guidance and not tramlines" (R v. Wakefield Metropolitan District Council, ex parte Pearl Assurance Plc (unreported) 5 March 1997, QBD, per Jowitt J), and the guidelines in question had no statutory force by themselves, they cannot be, in my judgment, substantially and materially deviated from, without rendering the selection process procedurally unfair, and therefore unlawful (in the public law sense). 57.What ought to have been done by the Council was to amend the guidelines by either deleting the reference to drawing from the experience of the last exhibition and the reference to the size of the last venue, or, supplying the size of the first choice of the steering group to the intending applicants (with an appropriate qualification that nothing had been confirmed yet), before the close of applications. As none of this was done, the applications ought to have been assessed on the basis of what had been represented in the guidelines. 58.On the facts of the present case, and particularly given the importance of the size of the venue to a proposal, as I said, using a likely venue size of 1,000 sq. ft. in the selection process rendered the whole process procedurally unfair and thus unlawful. No prejudice 59.I do not agree with Mr Lo's argument that the Applicant suffered no prejudice from the selection panel's using 1,000 sq. ft. as the likely size of the venue in assessing the proposals. 60.I do not doubt that the court retains a discretion not to grant any relief in judicial review proceedings if the applicant has not suffered any real prejudice at all by reason of the public law wrong. There is no "technical" public law wrong as such. The Court of Appeal's decision in Leung Fuk Wah v. Commissioner of Police [2002] 3 HKLRD 653 is one of the best local examples where the court refused to grant relief on the ground that no prejudice whatsoever had been suffered by the applicant as a result of the public law wrong. 61.On the other hand, both the courts and leading academics have cautioned against any over-readiness on the part of the courts to refuse relief on the ground that no prejudice has been suffered. See for example, de Smith, Woolf and Jowell's Principles of Judicial Review (1999 ed.) paras. 9-033 and 9-034; Feldman, English Public Law (2004 ed.) para. 18.67, and the authorities discussed by the learned author. I have myself expressed a similar reluctance to refuse relief in Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679. 62.On the facts of the present case, and based on the evidence before me, I am not prepared to conclude that the Applicant has suffered no prejudice at all in the selection process by reason of the selection panel's using 1,000 sq. ft. as the likely size of the venue, which was information unavailable to the Applicant when he prepared and submitted his proposal. First, notwithstanding what has been printed in the marking sheet, one of the criteria in the assessment was the project's "adaptability". On a fair reading of the evidence, that must include the adaptability of the project to the size of the venue. As has been explained by the Applicant, his proposal was capable of accommodating a variation in size of about 500 sq. ft. either way, which was about 1/7 of the represented likely size of the venue under the guidelines. 63.Secondly, there is no evidence on the other proposals that had been submitted to the selection panel for its assessment, and it is therefore not known how well (or poor) these other competing proposals fared in terms of their respective adaptabilities to the size or likely size of the venue. In other words, without knowing the whole picture of the competition amongst the various proposals, it is really impossible to say or conclude that the Applicant has not suffered any prejudice from a shift of the size of the venue from 3,500 sq. ft. to 1,000 sq. ft. Specifically, it is not known, on the available evidence, how well or how poor the Applicant and other applicants would have respectively performed under the marking by the selection panel if it had proceeded on the represented basis that the likely size of the venue was about 3,500 sq. ft. Nor can it be predicted, on the evidence before the Court, how the Applicant and his fellow competitors would have respectively done under the selection process, if all of them had been made known beforehand of the likely size of the venue as being about 1,000 sq. ft. only and had thus prepared their proposals accordingly. 64.In the circumstances, I am far from being satisfied that notwithstanding the public law wrong, no prejudice whatsoever was caused to the Applicant. 65.For all these reasons, subject to the matters to be discussed in the following paragraphs, the decision to reject the Applicant's proposal is liable to be declared unlawful by this Court. The appellate decision 66.I now turn to the challenge regarding the appellate process. But given my decision on the primary decision, my discussion in relation to the appellate process would be brief, for the simple reason that the appellate decision of the Review Committee cannot be upheld given the unlawfulness (in the public law sense) of the decision of the selection panel under challenge. 67.It may be recalled that one of the grounds of the Applicant's appeal was precisely that the selection panel had used 1,000 sq. ft. as the likely size of the venue in the selection process, contrary to the likely size of the venue represented under the guidelines. That ground of appeal was, like the other grounds of appeal (which are not relied on in these judicial review proceedings), rejected by the Review Committee. I have already extracted above the relevant reasons given by the Review Committee regarding this particular ground of appeal. 68.For the reasons given above, the grounds given by the Review Committee in rejecting this particular ground of appeal were erroneous and wrong. They did not address the gist of the Applicant's complaint. For that reason, the decision of the Review Committee is liable to be challenged. Public announcement whilst appeals were pending 69.But the Applicant also relies on a separate ground to challenge the appellate process in these judicial proceedings. The Applicant complains that prior to the proper disposal of his appeal, the Council has publicly announced, without any qualification or reservation, the result of the selection process. Although the contract with the successful candidate was not signed until after the rejection of the Applicant's appeal, yet the undeniable fact is that prior to the disposal of the appeal, the Council, as opposed to say, the selection panel, or the Arts Promotion Committee, had already announced to the whole world that the successful applicant (Para/Site) recommended by the selection panel and chosen by the Arts Promotion Committee (upon the former's recommendation) would represent Hong Kong in the forthcoming event. There was no qualification whatsoever regarding the pending appeals (- there was at least one other appeal apart from the Applicant's appeal). 70.It should be noted that the press release announcing Hong Kong's participation in the 50th Venice Biennale (by the successful candidate as its representative) was made to the public in the name of the Counsel itself. Likewise, the speech given by a member of the steering group at the press conference held on 13 March 2003 was made "on behalf of the Hong Kong Arts Development Council". 71.It should also be remembered that under the hierarchy of the Council, both the Review Committee and the Arts Promotion Committee are committees under the Council, whereas the steering group and the selection panel were ad hoc sub-committees under the Arts Promotion Committee. 72.Furthermore, two of the members of the Review Committee were, at the material times, also members of the Arts Promotion Committee, which decided to accept the successful candidate recommended by the selection panel. Moreover, all members of the Review Committee were (and still are) members of the Council itself, under which the Review Committee works. 73.In my judgment, the making of the public announcement by (or in the name of) the Council, as opposed to any of its committees or sub-committees, in an unreserved, unqualified and unconditional manner, on the participation of Para/Site as Hong Kong's representative, under a grant to be disbursed by the Council, in the 50th Venice Biennale, when there were still pending before the Review Committee under the Council appeals against the selection result, fundamentally flawed the appellate process, particularly bearing in mind the hierarchy of the Council and its committees and sub-committees, and the common memberships amongst the Review Committee, the Arts Promotion Committee and the Council itself. Apparent bias 74.In the recent Court of Final Appeal case of Deacons v. White & Case Ltd Liability Partnership [2004] 1 HKLRD 291, the highest court explained the test of "apparent bias" by reference to the latest English position as follows (at pp. 297I - 298E):
75.Having applied the test propounded by the Court of Final Appeal, I have come to the conclusion that unfortunately, what has happened in the present case, as outlined by me above, would lead a fair-minded and informed observer to conclude that there was a real possibility (or a real danger) that the Review Committee was bias in its handling of the Applicant's appeal, in that the matter had been pre-determined by the Review Committee, as evidenced by the public announcement made by the Council prior to the hearing and disposal of the Applicant's appeal. 76.The question is not, as Mr Lo has on behalf of the Council tried to persuade the Court, whether the Council could have done anything to accommodate an extra applicant as Hong Kong's representative in the Venice Biennial 2003, given that Para/Site had been unreservedly presented to the whole world as Hong Kong's representative in the exhibition, in case the extra applicant's appeal was successful. 77.The question is rather whether in the light of the high profile public announcement of Para/Site's successful candidacy and representation of Hong Kong in the exhibition at the selection of the Council, without any reference to, not to mention any reservation or qualification by reason of, the then pending appeals before the Review Committee, and given the hierarchy of the Council and its committees and sub-committees, and the common memberships relating to the Review Committee, the Arts Promotion Committee and the Council itself, a fair-minded and informed observer would conclude that there was a real possibility that the Review Committee had pre-determined the pending appeal and was thus bias. Put another way, given the press conference, the hierarchy and the common memberships, would such an observer conclude that there was a real possibility of the Review Committee not making any decision in the appeal that would go contrary to the public announcement of the Council under which the Review Committee functioned, or, one that would go against the decision made by a parallel committee in the hierarchy (namely the Arts Promotion Committee) which made the decision under appeal. 78.That said, I must emphasize that there is no question of any actual bias or predetermination in the present case. No such allegation or suggestion has been made against the Review Committee. No conclusion, whether expressed or implied, to that effect is reached or intended in this judgment. 79.But that is, for the purposes of the present issue, neither here nor there. 80.For all the above reasons, the decision made by the Review Committee on appeal is likewise, subject to the matters to be discussed below, liable to be declared unlawful. Discretionary relief - academic question 81.I now turn to the last main issue between the parties in these proceedings, namely the discretion of the court. Two points were argued, namely academic question and delay. 82.Leaving the claim for damages aside, the Applicant asks this Court to grant him declaratory relief against the two decisions under challenge. For quite obvious reasons, he does not, nor would there be any point in so doing, ask this Court to quash the two decisions, or to order a re-run of the selection process. The 50th Venice Biennale is now mere history, this judicial review application aside. 83.Mr Lo on behalf of the Council argued at the hearing that the question of granting any declarations in favour of the Applicant is academic. There is no utility in making any such declarations. More generally, counsel argued that the court does not sit in judicial review proceedings to render academic or advisory views on matters not involving a "live" dispute between the parties before the court. 84.In Chit Fai Motors Co. Ltd v. Commissioner for Transport [2004] 1 HKC 465, Ma CJHC, giving the judgment of the court, explained the relevant principles as follows (at pp. 472C - 473G):
85.I do not agree that the grant of the declarations sought will serve no useful purpose. At the very least, the Applicant is also claiming damages based on the breach of a contract between him and the Council in these judicial review proceedings, as he is entitled to do: see O. 53 r. 7, Rules of the High Court (Cap. 4). A declaration that the two decisions were made unlawfully because of procedural wrongs would, judging from the cause of action relied on by the Applicant to claim damages against the Council, certainly go some way towards helping the Applicant establish his claim (that is not to say that the Court considers that the Applicant has a good claim based on a breach of contract - that is still a matter to be tried: see below). 86.Moreover, apart from the Applicant's personal interest in obtaining the declarations, there is a wider consideration here. The complaints underlying the challenges in the present case cannot be said to be "one off" complaints. A broadly similar complaint regarding the size of the venue had already been made regarding the Council's handling of applications for participation in the 49th Venice Biennale: see Bundle B1, page 158, paragraph (9). 87.Furthermore, similar guidelines are, according to the evidence, commonly used by the Council in selection processes of various types. 88.Moreover, presumably, the Council will continue to take part in the Venice Biennale in future. 89.The grant of formal relief in favour of the Applicant against the Council would highlight to the Council the importance of proper adherence to published guidelines (and similar documents) and proper and due updating of information contained in published guidelines, and that of properly handling appellate procedures and announcement of selection results (subject to appeals). 90.As Mr Pun, counsel for the Applicant has submitted, it is in the interest of the public as a whole that those responsible for performing public duties and functions, like the Council, should perform them in a lawful and fair manner, since otherwise the public's confidence in the manner in which they are governed will be undermined (see Woolf & Woolf, The Declaratory Judgment (3rd. ed.) para. 4.126). 91.In my view, a formal declaration by the Court would highlight to the Council the importance of the above matter. This is particularly so given the nature of this type of cases where very often a determination by the court cannot be obtained until many months after the event in question. Sending the aggrieved applicant away in those circumstances by telling him or her that no relief can be granted because the event has already happened and one cannot, as it were, turn back the clock would send the wrong signal to everyone concerned. The grant of a declaration is, practically speaking, the only solemn and formal way by which the court can emphasize to the public body in question the importance of proper adherence to requirements of public law. Delays - prejudice to good administration 92.Mr Lo on behalf of the Council also argued that there had been delays on the part of the Applicant in completing the standard form for filing an appeal and in applying for leave for judicial review, and thus asked the Court not to grant any relief as a matter of discretion. He referred the Court to section 21K(7) of the High Court Ordinance (Cap. 4). 93.On the evidence, I do not consider the Applicant was unduly late in completing the form for appeal and returning it to the Review Committee. 94.The time taken for his filing (in person) his application for leave to apply for judicial review is wholly understandable given his application for legal aid. When he found the result was still pending, he lost no (further) time in putting in an application in person prior to expiry of the 3 months limit. The Applicant cannot be criticized for the time lost in the process. 95.Moreover, having borne in mind the discussions of the meaning of "prejudice to good administration" in cases like R v. Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 AC 738, 749F-750A and R v. Monopolies and Mergers Commission, ex parte Argyll Group Plc [1986] 1 WLR 763, 774D-775B, I can find nothing in terms of prejudice to good administration if this Court is to accede to the Applicant's claim for declaratory relief. Quite to the contrary, the grant of the declarations sought would highlight to the Council the importance of adherence to well established public law principles in performing its statutory functions and exercising its statutory powers set out under the Ordinance. Outcome 96.For all these reasons, I am prepared to grant the following declarations in favour of the Applicant:
97.As regards the claim for damages, for reasons that I have already orally given during the hearing, I would exercise the Court's discretion under O. 53 r. 9(5) and order the present proceedings, in so far as they relate to the claim for damages based on the breach of a contract between him and the Council, to continue as if they had been begun by writ. 98.I further direct the parties to submit (if possible) an agreed set of directions regarding the filing of pleadings and further steps to be taken in the proceedings so continued as aforesaid, for the Court's approval. Failing agreement, the parties shall be at liberty to apply to this Court for directions. 99.My above direction does not prejudice any application, if deemed appropriate, for the transfer of the remaining proceedings (for claim of damages) to the District Court (or even the Small Claims Tribunal) for further prosecution and adjudication, depending on the quantum of the Applicant's claim for damages. 100.Finally as regards the costs of the proceedings (incurred thus far), I make an order nisi that the same be paid by the Council to the Applicant; such costs are to be taxed if not agreed. I also order legal aid taxation of the Applicant's own costs. 101.I thank counsel on both sides for their helpful assistance.
Representation: Mr Hectar Pun, instructed by Messrs Hastings & Co., assigned by the Director of Legal Aid, for the Applicant Mr P Y Lo, instructed by Messrs Stevenson, Wong & Co., for the Respondent Appeal by the Applicant for leave to bring judicial review proceedings to Court of Appeal allowed. Please refer to CACV224/2003 dated 9 October 2003 |
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