Law Sze Yan v. The Chinese Medicine Practitioners Board of the Chinese Medicine Council of Hong Kong

HCAL41/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.41 OF 2005

---------------------

BETWEEN

----------------------

Before : Hon Chu J in Court

Date of Hearing : 12 December 2005

Date of Judgment : 26 June 2006

-----------------------

J U D G M E N T

-----------------------

1.The applicant applies to judicially review the decision of the Chinese Medicine Practitioners’ Board (“the Board”) of the Chinese Medicine Council of Hong Kong (“the Council”) not to assess a part-time undergraduate degree course in Chinese medicine run by Jinan University of Guangzhou, PRC and the Hong Kong College of Technology (“HKCT”).  The decision was contained in two letters dated 2 December 2004 and 21 March 2005 from the Board to HKCT.  In this application, the applicant, a student enrolled in the course, seeks to quash the decision and an order declaring the decision a nullity.  He also seeks an order compelling the Board to assess the programme in question.

Background

2.On 14 July 1999, the Chinese Medicine Ordinance (“the Ordinance”) was enacted.  It provides the statutory framework for regulating and controlling Chinese medicine practitioners and Chinese medicines in Hong Kong.  Section 3 establishes the Council, which is an independent statutory body.  In September 1999, the Board was set up under the Council.  It is charged with the responsibility of, inter alia, conducting and regulating the examination, registration, regulation of practice, discipline and conduct of the Chinese medicine practitioners in Hong Kong.  Under the Board, two committees were established.  They are the Examination Committee and the Committee on Assessment of Chinese Medicine Degree Courses.

3.Under section 59(1) of the Ordinance, the Board is required to set and conduct the Licensing Examination.  Under section 60, the Board shall determine the syllabus, format, standard of assessment and other related matters in respect of the Licensing Examination.

4.Under section 67(a) of the Ordinance, a person who wishes to apply to be registered as a registered Chinese medicine practitioner has to pass the Licensing Examination.

5.Section 61(1)(a) further provides that to be eligible to take the Licensing Examination, a person must satisfy the Board that he has satisfactorily completed such undergraduate degree course of training in Chinese medicine practice or its equivalent as is approved by the Board.

6.In short, in order to become a registered Chinese medicine practitioner and to practise Chinese medicine, a person must : (i) possess the academic qualifications that would entitle him to sit the Licensing Examination, and (ii) pass the Licensing Examination.

7.Further under the statutory scheme, the Board is charged with the power and duty to assess and approve undergraduate degree course of training in Chinese medicine practice for satisfying the entry condition for undertaking the Licensing Examination.

8.Assessment of courses to see whether they meet the basic requirements set by the Board is carried out by the Committee on Assessment of Chinese Medicine Degree Courses (“the Committee”).  For courses conducted by universities and institutions in the Mainland, the Board has enlisted the support of the State Administration of Traditional Chinese Medicine to undertake the assessment and to make recommendations to the Board.

9.After deliberations in 2000, the Board resolved that the basic requirements of an approved undergraduate course (“the basic course requirements”) should be as follows :

(a)      The course shall be a full-time on campus undergraduate degree course in Chinese medicine of no less than 5 years’ duration, comprising not less than 30 weeks of internship, or its equivalent.

(b)     The course must include the 10 compulsory subjects prescribed by the Board.

(c)     The course must not be conducted, whether in part or in whole, by means of distance learning, such as correspondence course or on-line training programme.

(d)     The course should fulfil the basic requirements of university and clinical training in respect of, for instance, teaching quality, teaching/laboratory facilities, instructional management, library facilities, qualifications of the teaching staff, the standard of the student admission, clinical training and so on.

10.At the time, there were a total of six undergraduate degree courses on Chinese medicine that were conducted by the local universities. Four of these courses were full-time degree courses conducted by the University of Hong Kong (“HKU”), Chinese University of Hong Kong (“CUHK”) and Baptist University of Hong Kong (“BUHK”).  The remaining two were part-time degree courses run by HKU and BUHK, which commenced in 1998 and 2000 respectively.

11.Between September 2001 and April 2002, the Committee carried out an assessment of all these six local degree courses.  In May 2002, the Committee submitted the assessment reports to the Board.  It recommended the approval of all the four full-time courses.  As for the two part-time courses, the Committee considered they met the basic requirements in terms of the subjects offered and study hours, but the mode of study (i.e. part-time) was insufficient to ensure the quality of teaching and learning and the standard of clinical training.  The Committee recommended an one-off exceptional arrangement for the students already enrolled in the courses in or before 2002 by allowing them to sit the Licensing Examination upon satisfactory completion of their courses.

12.After deliberation, the Board accepted the recommendations of the Committee.  The decision was communicated to the universities in June 2002.  In August 2002, the Board further provided to the universities a list of areas of concerns and recommendations on the degree courses for reference and follow-up. 

13.On 5 September 2002, the Board made a press announcement of its approval of the full-time courses of the three local universities and the arrangement for the students enrolled in the two part-time courses of HKU and BUHK.

14.In November 2002, acting on the recommendations of the State Administration of Traditional Chinese Medicine, the Board also recognized and approved the full-time undergraduate degree courses in Chinese medicine conducted by 27 higher education institutions in Chinese medicine in the Mainland.

15.In December 2002, the Council published the 2003 Licensing Examination Candidate Handbook (“2003 Handbook”) setting out the information on the Licensing Examination.  Among the information promulgated in the Handbook were the basic course requirements and the list of the 30 universities and institutions (3 from local and 27 from Mainland) whose courses on Chinese medicine were approved by the Board for the purpose of the Licensing Examination.

The facts leading to the judicial review

16.HKCT is not a university or institute of higher education.  It is a local organisation involved in the provision of education and training.  Jinan University is a Mainland university.  Neither of them is on the list of universities and institutions promulgated in the 2003 Handbook. 

17.HKCT and Jinan University together offered a part-time undergraduate degree programme in Chinese medicine (“the Program”).  There were four intakes of students in March and September of 2001 and 2002 respectively.  The applicant enrolled in the Program in September 2001.  The course is for seven years.  Satisfactory completion of it leads to an award of a professional degree by Jinan University.  When the Program commenced, it adopted a mixed correspondence and classroom teaching mode.  The clinical training is carried out at Jinan University while classroom teaching is conducted on the premises of HKCT.

18.By letter dated 31 May 2002, HKCT first enquired with the Board whether the Program would be recognized by the Council and whether the graduates would be eligible to sit the Licensing Examination.

19.In November 2002, the Board deliberated on the Program as well as two other part-time courses.  The first of which was jointly run by BUHK and the RMIT University in Australia.  The second one was jointly run by the Open University of Hong Kong (“OUHK”) and Xiamen University in the Mainland.  The Board concluded that all three courses did not meet the basic course requirements and they were not accredited courses for undertaking the Licensing Examination.

20.Thereafter until March 2004, there was extensive exchange of correspondence in connection withthe request to approve the Program involving not only the Board and HKCT, but also Legislative councillors and the LegCo Secretariate, from whom HKCT and the students enrolled in the Program had sought assistance.  Specifically by letters dated 13 June and 9 October 2003, the Council explained to the LegCo Secretariate its decision not to approve the Program.  In summary, the Board pointed out that the Program did not meet the basic course requirements in that it only had total learning hours of about 1,000 hours, with less than 1,000 hours on Chinese medicine subjects, and six months of clinical training.  Further, the mode of teaching was by both correspondence and classroom teaching.  In the letters, the Board also emphasized that unlike in the case of Chinese medicine practitioners, the Ordinance has not provided for transitional arrangements for students undertaking professional training in Chinese medicine.  The decision to permit students enrolled in the two part-time courses of HKU and BUHK to sit the Licensing Examination upon completion of their courses was because of the historical circumstances of Chinese medicine education in Hong Kong universities.  Hence, it was inappropriate to extend the arrangement to courses of universities outside Hong Kong.

21.Then on 12 October 2004, HKCT wrote to inform the Board that Jinan University had substantially reformed the Program to meet the basic course requirements prescribed by the Board.  In the letter, HKCT requested the Board for the first time to assess the Program.  By letter dated 2 December 2004, the Board informed HKCT that it had decided not to assess the Program as reformed because it was a part-time course and did not meet the basic course requirements of a full-time undergraduate course of not less than five years.

22.By another letter dated 3 January 2005, HKCT again requested the Board to assess the Program.  The Board replied by letter dated 21 March 2005, reiterating that the Program was a part-time course, hence did not satisfy the basic course requirements.  The Board stated that it would not recognize the Program or conduct an assessment of it.

23.On 4 May 2005, the applicant commenced these proceedings.  Leave to apply for judicial review was granted on 9 May 2005.

The application for judicial review

24.In the Form 86A, two grounds were set out in support of the judicial review application.  They are :

(1)     The Board’s decision was Wednesbury unreasonable in that it failed to accord equal treatment to the Program.

(2)     The Board’s decision was Wednesbury unreasonable in that it is unduly oppressive, subjecting the applicant to excessive hardship, and/or the applicant had a legitimate expectation that he would be treated equally with other students who were enrolled in part-time courses in or before 2002.

25.At the hearing, Mr Ng, who appeared for the applicant, summarized the grounds as : (1) irrationality and (2) legitimate expectation or oppression.  He further confirmed that no challenge is made to the Board’s decision in June 2002 to make an one-off exceptional arrangement in connection with the part-time courses conducted by HKU and BUHK.  Indeed, no leave has been given to argue this and the Form 86A would have to be amended before the applicant can launch any challenge to the 2002 decision.

The Board’s decision

26.Before analysing the two grounds of challenge, it is necessary to understand the deliberations and reasons underlying the Board’s decision not to assess and approve the Program.  As a matter of principle, the Board considered that the basic course requirements, including a full-time undergraduate degree course, are necessary to maintain the long term development and standards of the Chinese medicine training and of the profession.  The Board took the view that the maintenance of the standards is important to protect public health and safety as well as to maintain public confidence in Chinese medicine and its practice. 

27.In respect of the two local part-time degree courses run by HKU and BUHK, the Board was prepared to make an exceptional arrangement for the students enrolled in the courses in or before 2002.   The Board came to this decision after considering the historical circumstances that these courses already commenced in 1998 and 2000 and that they were assessed by the Committee to have met the basic course requirement save with regard to its mode of study (i.e. part-time).  As the Board’s concern was directed at professional education in Chinese medicine provided by local universities before the provisions in the Ordinance on registration and examination of Chinese medicine practitioners came into effect, it was not prepared to assess or approve part-time Chinese medicine degree courses run by non-local universities or institutes of higher education.

28.With specific regard to the Program, the Board’s reasons not to assess it are twofold.  Firstly, the Program was not a five-year full-time degree course and did not meet the basic course requirements.  Secondly, there was no justification to make exceptional arrangement for students enrolled in the Program.  The special consideration given to part-time courses run by local universities does not apply in that HKCT is not a university and Jinan University is not a local university. 

Ground 1 : Unequal treatment

29.The first ground of the applicant’s challenge is that the Board did not accord equal treatment to the Program.  The applicant’s case is that the Program stands in the same or similar position as that of the part-time degree courses of HKU and BUHK.  Accordingly, the Board ought to carry out an assessment of the Program as it had done in relation to the courses of HKU and BUHK.  The refusal to assess the Program is therefore irrational. 

30.In New Territories Cargo Transport Association Ltd v. Director of Marine (unreported) CACV14/1997, the Court of Appeal held that where an administrative decision involves treating a particular group of persons differently from everybody else who appear to be like them and the decision is challenged on the basis that it is irrational by reason of such difference in treatment, the test as to the lawfulness or otherwise of the decision is whether there is a rational basis for the difference in treatment.

31.In Association of Expatriate Civil Servants of Hong Kong v. Secretary for the Civil Service (1996) 6 HKPLR 333, 352A-B, Bokhary JA citing his earlier decisions in R. v. Man Wai Keung (No.2) (1992) 2 HKPLR 165, 179 and Lee Miu Ling v. AG (No.2) (1995) 5 HKPLR 585, 591E-C, held that to justify a departure from the requirement of identical treatment, it must be shown that : (i) sensible and fair-minded people would recognize a genuine need for some difference of treatment; (ii) the difference embodied in the particular departure selected to meet that need is itself rational; and (iii) such departure is proportionate to such need.

32.There are two issues under the first ground of challenge.  The first is whether as a matter of fact, the Program stands in the same or similar position as that of the two part-time courses run by HKU and BUHK.  The second issue is, if the position is the same or similar and there had been difference in the Board’s treatment of the Program and the other two courses, whether there is a rational basis for it.

33.Factually speaking, both the Program and the courses of HKU and BUHK are part-time courses.  In this respect, they all fail to meet one of the basic course requirements, namely, a full-time undergraduate course of not less than 5 years.  However, it does not follow that the Program stands in the same or similar position as that of the courses of HKU and BUHK.  It is the Board’s case that there are important differences between them.  I agree.

34.Firstly, the courses of HKU and BUHK commenced in 1998 and 2000, before the statutory provisions on registration and examination of Chinese medicine practitioners came into effect.  By contrast, the Program only commenced in 2001.  Secondly, unlike the courses of HKU and BUHK, the Program is not an undergraduate degree course of a local university.  HKCT is not a university or an institute of higher education.  The Program is in substance an undergraduate course of Jinan University of Guangzhou, a non-local university. 

35.These are material differences.  In the first place, the Board’s decision in 2002 to make an one-off exceptional arrangement for the students enrolled in the part-time courses of HKU and BUHK is a recognition of the fact that a number of undergraduate courses on Chinese medicine, including part-time courses of HKU and BUHK, were already conducted by the local universities when the Ordinance came into effect and when the Board formulated the basic course requirements.  The Board’s 2002 decision is to accommodate the situation caused by the historical legacy of local university education in Chinese medicine.  Plainly the rationale underlying the exceptional arrangement has no application to courses of a non-local university, such as the Program.  

36.Secondly, the applicant argues that it is immaterial that HKCT is not a university or institute of higher education because the respective part-time courses that BUHK and OUHK jointly organized with overseas universities were not included in the one-off exceptional arrangement.  I am unable to agree with this argument.  These courses were not assessed or approved because they were not full-time on-campus degree courses of not less than five years.  It must be trite that the mere fact of being a course delivered by a university will not entitle the course to be assessed and approved by the Board.  This however does not lead to the conclusion that whether the course is delivered by a university is of no significance.  On the contrary, it is a statutory requirement under section 61(1)(a) of the Ordinance that a person must have satisfactorily completed an undergraduate degree course approved by the Board or its equivalent in order to be eligible to take the Licensing Examination.  Therefore, whether the course is run by an university must be a highly relevant consideration.

37.Thirdly, the Program is in substance an undergraduate programme of Jinan University that is provided in Hong Kong through HKCT’s assistance.  Although classroom teaching is conducted on the premises of HKCT, clinical training is carried out in Jinan University.  Indeed, HKCT has no laboratory or other facilities for the clinical aspect of the teaching and training.  Unlike HKU and BUHK, Jinan University, being a non-local university, is not subject to the supervision of Hong Kong education authority.  More importantly, as the Board emphasizes, there are practical difficulties and resources constraints for the Board to conduct proper assessments and monitor courses run by non-local universities and institutes of higher education.  In the case of mainland universities and institutes, the Board had to enlist the assistance of the State Administration of Traditional Chinese medicine.  Given that the Board had set full-time undergraduate degree course as one of the basic course requirements, it is unrealistic to expect the Board to incur resources to assess part-time courses of non-local universities.  Even in the context of considering exceptional arrangement for existing part-time undergraduate courses of local universities, the Board cannot reasonably be expected to assess part-time courses of non-local universities or institutes that are being delivered in Hong Kong through Hong Kong institutes. 

38.As the evidence shows, the Board’s stance with regard to part-time courses offered jointly by local and non-local universities had been consistent throughout.  Just as it had declined to assess the Program, it had also declined to assess the joint course of BUHK and RMIT University of Australia and that of OUHK and Xiamen University in the Mainland. 

39.It is also worth noting that Jinan University had not requested the Board to assess the Program or its 5-year full-time programme.  It was only subsequently in 2005 that Jinan University requested an assessment of the full-time programme and the Board’s approval was given in late 2005.

40.The foregoing analyses demonstrate that the Program does not stand in the same or similar position with the part-time undergraduate degree courses of HKU and BUHK.  As they are not the like, there is no basis for contending that there were unequal treatments.  Even if there are differences in treatment, which I do not accept, there are proper and rational basis for the Board not to assess the Program or to consider exceptional arrangement for students enrolled in the Program. 

41.The applicant argues that the Board acts unfairly in giving preference to local universities and local qualifications.  It is also said that the Mainland has a longer history of Chinese medicine studies than Hong Kong and the quality of Chinese medicine education in the Mainland may be much better than that in Hong Kong.  In my view, these arguments are misplaced and have overlooked the overall picture underlying the Board’s decision. 

42.As noted above, when the Board resolved to require Chinese medicine courses to be full-time courses of not less than 5 years, there were already the two part-time courses of HKU and BUHK.  However, the Ordinance has made no transitional provision for students already undertaking professional training in Chinese medicine in Hong Kong.  It is against these circumstances that the Board decided to make exceptional arrangement to students enrolled in the two part-time courses of HKU and BUHK.  Thus viewed, it is not a matter of affording preferential treatment to local universities.  Rather as the Board has been at pain to emphasize, it is to take note of the historical development in Chinese medicine education in Hong Kong.  In other words, the Board was giving a practical solution to a problem in the local university education on Chinese medicine brought about by its decision to require full-time Chinese medicine training.  Thus analyzed, fairness does not require the Board to have regard to or to accommodate part-time Chinese medicine courses conducted by non-local universities or institutes of higher education.  There is no unfairness in not making exceptional arrangement for students in part-time courses of non-local universities or institutes of higher education.

43.At any rate, it must be remembered that the applicant has not challenged the Board’s decision in 2002 to make an one-off exceptional arrangement for the students enrolled in the part-time courses of HKU and BUHK.  The decision in 2005 not to assess or to make exceptional arrangement for the Program is the result of the 2002 decision.  Given that there is no challenge to the 2002 decision, it is not open to the applicant to argue that the Board’s decision in 2005 was unfair in that it had preferred local universities to non-local universities.

44.Before leaving the first ground of challenge, I will deal briefly with the applicant’s argument that the exceptional arrangement was not “one-off” because it had been applied to certificate or diploma courses.  This argument is based on a mis-reading of the evidence.

45.What happened was in May 2003, the Department of Health submitted a paper to the LegCo Panel on Health Services (Ref. No. CB(2) 2012/02-03 (05)) to report on the updated development of the work on registration of Chinese medicine practitioners under the Ordinance.  At paragraph 15, it reported that the Board had approved the full-time courses of the three local universities and 27 Mainland universities and institutes of higher education.  At paragraph 16, the paper stated that the Board after careful deliberations had decided to permit the students enrolled before 2002 in the part-time courses of HKU and BUHK to sit the Licensing Examination upon their satisfactory completion of the courses.  The paper went on to state that to take care of the students currently enrolled in the part-time diploma or certificate courses of HKU and BUHK, the Board had resolved that these students, upon their transferring to and satisfactorily completing the relevant bridging courses and part-time or full-time courses on Chinese medicine, may be eligible for sitting the Licensing Examination.

46.It is therefore not the case that the Board had extended the exceptional arrangement to students in the diploma/certificate courses of HKU and BUHK.  The students in the diploma/certificate courses upon completion of their courses are not eligible to sit the Licensing Examinations.  They only become eligible after completing the bridging courses and the undergraduate degree courses on Chinese medicine.  The exceptional arrangement for the students already enrolled in the part-time degree courses of HKU and BUHK is indeed one-off since there was no further intake for the courses after 2002.

47.For the above reasons, the first ground of challenge fails.

Ground 2 : Legitimate expectation

48.The applicant’s second ground of challenge is that he has a substantive legitimate expectation that he would be accorded equal treatment as students enrolled in the part-time courses of HKU and BUHK.

49.In Ng Siu Tung v. Director of Immigration (2002) 5 HKCFAR 1, the Court of Final Appeal held that the doctrine of substantive legitimate expectation is part of the administrative law of Hong Kong.  Under the doctrine, a failure to honour a legitimate expectation of a substantive outcome or benefit might, in the absence of an overriding reason of law or policy excluding its operation, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court.  One of the necessary elements of the doctrine is that the legitimate expectation has to arise from a promise or representation, the expectation being that the promise or representation would be honoured : at para. 94.  Generally speaking, the representation relied upon to support a legitimate expectation must be clear and unambiguous.  Where a representation is reasonably susceptible of competing constructions, the correct approach is to adopt the interpretation applied by the public authority, subject to the application of the Wednesbury reasonableness test : at para. 104.

50.In the present case, the applicant bases his legitimate expectation claim on the press announcement of the Board on 5 September 2002.  The part of the announcement relied by the applicant reads :

“……中醫組已完成評審本地三間大學，即香港大學、中文大學和浸會大學，所舉辦的中醫本科學位課程，其中全日制課程已獲中醫組接納為可參加執業資格試的認可課程。於2002年或以前已經入讀上述三所大學所舉辦的中醫兼讀制學位課程的學生，在圓滿地完成課程後，亦可參加執業資格試。”

51.Three points were made in this part of the press announcement.  Firstly, the Board had assessed the undergraduate degree courses on Chinese medicine run by the three local universities, viz. HKU, CUHK and BUHK.  Secondly, all the full-time courses had been approved for the purpose of the Licensing Examination.  Thirdly, students enrolled in the part-time Chinese medicine undergraduate courses of these universities in or before 2002 may, upon satisfactory completion of the courses, be eligible to sit the Licensing Examination.

52.Mr Ng argues that as a matter of necessary implication, this part of the press announcement had given rise to a legitimate expectation that the applicant, who was enrolled in a part-time course before 2002, would be treated fairly and equally by the Board when it considered whether to assess and approve part-time courses on Chinese medicine.  It is said that since the Board had announced in its 2003 Handbook (published in December 2002, at para. 4(a)) that for the purpose of section 61(1)(a) of the Ordinance, it is a basic requirement that the course is a full-time undergraduate programme of not less than 5 years, the question of how to deal with part-time courses would necessarily arise.  It is on this basis that the applicant’s claim of legitimate expectation is said to have arisen.

53.In my view, the press announcement whether on its own or read in conjunction with the subsequent 2003 Handbook cannot give rise to any express or implied promise or representation of the kind argued by the applicant, or at all.  The very basic requirement for a legitimate expectation is therefore absent.  Students on other part-time courses, like the applicant, might, upon reading the announcement, hope that they would also be permitted to sit the Licensing Examination upon satisfactory completion of their courses.  However, a mere hope is not enough.  The announcement is completely silent on undergraduate degree courses not run by the three local universities, HKU, CUHK and BUHK.  Neither has it made any mention of undergraduate degree courses of non-local universities or institutes of education.  It cannot give rise to any promise or representation with regard to part-time undergraduate courses of universities and institutes other than HKU, CUHK and BUHK.

54.Mr Ng refers to the judgment in Ng Siu Tung v. Director of Immigration at para. 92 which states : “Generally speaking, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of government or a public authority.”  He submits that a policy can also provide the basis for a legitimate expectation to arise.  The submission cannot assist the applicant.  The press announcement cannot reasonably be read as announcing or conveying any general or specific policy with regard to part-time undergraduate degree courses of universities and institutes other than the three local universities or at all.

55.Further, when the press announcement was made in September 2002, the applicant was already enrolled in the Program.  His decision to take the course could not be related to the announcement.  He had not shown how he had acted in reliance on the announcement, irrespective of whether the announcement amounts to a promise or representation or statement of policy.

56.Given that the press announcement does not give rise to any promise or representation or statement of policy, there is no case of a failure to honour a promise or representation or to take into consideration a promise, representation or stated policy.  There is accordingly no unfairness that can justify the intervention of the court.  The challenge based on legitimate expectation therefore fails.

The standing of the applicant

57.The applicant has sought a certiorari to quash the Board’s decision not to assess the Program as well as an order compelling the Board to undertake an assessment of the course.

58.It is the respondent’s argument that the applicant lacks the necessary standing for the grant of the relief.  I agree.

59.As Mr Kwok, who appeared for the respondent, rightly argues, the proper party to challenge a refusal to assess a course and to seek an order compelling assessment is the education institute that operates the course, and not a student currently taking the course.  The assessment of a course requires the agreement and co-operation of the institution conducting it.  Neither HKCT nor Jinan University has joined in the present challenge to the Board’s decision or has sought to compel an assessment by the Board.  Further, as the applicant has yet to complete the course, it is too early for him to say that he is affected by the Board’s decision.

60.In R v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte World Development Movement Ltd [1995] 1 WLR 386 at 395G-H, Rose LJ observed :

“Furthermore, the merits of the challenge are an important, if not dominant, factor when considering standing.  In Professor Sir William Wade’s words in Administrative Law (7^th edn, 1994) P 712: ‘… the real question is whether the applicant can show some substantial default or abuse, and not whether his personal rights or interests are involved.’

Leaving merits aside for a moment, there seem to me to be a number of factors of significance in the present case: the importance of vindicating the rule of law, as Lord Diplock emphasized in IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93 at 107, [1982] AC 617 at 644; the importance of the issue raised, as in Ex p Child Poverty Action Group; the likely absence of any other responsible challenger, as in Ex p Child Poverty Action Group and Ex p Greenpeace Ltd; the nature of the breach of duty against which relief is sought (see IRC v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93 at 96, [1982] AC 617 at 630 per Lord Wilberforce); and the prominent role of these applicants in giving advice, guidance and assistance with regard to aid (see Ex p Child Poverty Action Group [1989] 1 All ER 1047 at 1048, [1990] 2 QB 540 at 546).” [Emphasis added]

61.The applicant has not been able to show any substantial default or abuse on the part of the Board as to justify him in bringing judicial review. 

62.Additionally, given that HKCT and Jinan University is not a party to these proceedings, it is impossible and amounts to a futile exercise of the court’s discretion to grant the relief of compelling the Board to assess the Program.

Conclusion

63.For the above reasons, the application for judicial review fails.  Accordingly, I dismiss the application.  Applying the normal rule of costs follow event, there is an order nisi that the applicant pays the costs of the respondent, to be taxed if not agreed.  The applicant’s own costs be taxed under the Legal Aid Regulations.

Mr Kenneth W.H. Ng, instructed by Messrs Tang Lai & Leung,  for the Applicant

Mr Kwok Sui Hay, instructed by Messrs Lo & Lo, for the Respondent