Li Yiu Kee v. The Chinese University of Hong Kong
Read the full judgment text of CACV 93/2009 on BabelCite. This Court of Appeal judgment was delivered on 23 July 2010.
1. The main issue in this appeal is whether The Chinese University of Hong Kong Ordinance, Cap. 1109, imposes upon the University a duty to use Chinese as the principal language of instruction.
Cited by 3 cases · Cites 1 case
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CACV 93/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 93 OF 2009 (ON APPEAL FROM HCAL NO. 5 OF 2008) ----------------------
---------------------- Before: Hon Stock VP, Kwan JA and Chu J in Court Dates of Hearing: 28-29 April 2010 Date of Handing Down Judgment: 23 July 2010 ---------------------- J U D G M E N T ---------------------- Hon Stock VP: Introduction 1.The main issue in this appeal is whether The Chinese University of Hong Kong Ordinance, Cap. 1109, imposes upon the University a duty to use Chinese as the principal language of instruction. 2.The Chinese University of Hong Kong was established and incorporated in 1963 by the Chinese University of Hong Kong Ordinance, No. 28 of 1963. It had three constituent colleges and a federal constitution. 3.In 1976, in order to vest certain powers and functions of the colleges in the University, that Ordinance was repealed and replaced by the Ordinance with which this appeal is concerned. There have been some amendments to the Ordinance since 1976, but none of present moment. 4.In 2007, the Senate of the University adopted the report of a committee, the Committee on Bilingualism, which made certain recommendations designed “to promote and enhance bilingual education”[1] at the University, including the establishment of a Committee on Language Enhancement, whose function it would be to implement the language policy recommended by the Committee. 5.At the time the proceedings from which this appeal arises commenced in December 2008, the applicant, Mr Li, was an undergraduate student at the University. He obtained leave to apply for judicial review to challenge the decisions of the Senate to adopt the Report and to establish the Committee on Language Enhancement. 6.His case was that a proper construction of the Ordinance requires the Senate to ensure that the principal language of instruction at the University is Chinese. He sought a declaration to that effect, as well as a declaration that the policy recommended by the Committee’s report and adopted by the Senate contravened that requirement because that policy, so he contended, enabled English to dominate as the language of instruction or, if not dominate, to occupy a position equal to that of Chinese. He sought an order to quash the Senate’s decisions of October 2007 to adopt and to implement the Committee’s report. 7.By a judgment dated 9 February 2009, Andrew Cheung J dismissed the application. This is an appeal from that decision. The issue 8.The applicant’s case turns upon the construction of the Ordinance and, most particularly, upon a provision in the preamble which runs as follows:
9.The phrase “ … in which the principal language of instruction shall be Chinese” is at the heart of this case. The issue is whether that phrase has any effect in law, given that it is only articulated in the preamble and not in the operative part of the legislation; and, if it has an effect in law, what is its effect? History 10.To understand the genesis of that phrase and the parties’ respective contentions in relation to its present effect, it is necessary to know something about the circumstances giving rise to the establishment of the University and what role was envisaged for it. 11.In the context of the required curial level of scrutiny of the Senate’s decisions, the respondent points out that the applicant does not assert that he has suffered any disadvantage in his academic studies or otherwise as a result of the language policy pursued by the University. In one sense that is true: he does not assert that he has been excluded from courses which he might otherwise have pursued, or that he has been disadvantaged in his career choices. But his complaint is more subtle than that. It is a fundamental and principled objection, for it is based upon that which he – and no doubt others – perceives to be a breach of faith on a matter which goes to ethnic and cultural identity and respect. For this reason too – to understand the sense of grievance which motivates this application – the history needs to be appreciated. 12.The University of Hong Kong was established in 1911 and until the establishment of the Chinese University in 1963, it remained the only University in Hong Kong. Its language of instruction was, and remains, English. Events of the late 1940s and early 1950s in the Mainland resulted in an influx of refugees into this territory which compelled the Government of the time to address the education needs of the youth of Hong Kong. The story is taken up in a book by Professor Alice Lun Ng “The Quest for Excellence, A History of the Chinese University of Hong Kong from 1963 to 1993”, an extract from which is cited in the judgment[2] :
The Fulton Commission 13.The terms of reference of the Fulton Commission were to advise the Government on the steps necessary in order to establish a federal type Chinese University at the earliest possible date and, in this connection, to draft a constitution for the University. 14.The suggested constitution was presented in the form of a draft Ordinance. The objects and functions of the Ordinance – reflected in the current preamble – were contained in the proposed section 6:
15.There was no reference in the draft to the use of any language as the language or as a language of instruction, even though the Commission’s report itself referred to “the strong demand for the incorporation of the Post- Secondary Colleges in a federal university using Chinese as the principal medium of instruction… .”[4] It is neither possible nor necessary to decide why the draft made no reference to the language of instruction, although the respondent would in this regard wish to draw attention to the report’s reference to the difficulty of predicting what the needs of society would be in years to come:
The 1963 Ordinance 16.In moving the First reading of the Chinese University of Hong Kong Bill, 1963, the Colonial Secretary referred to the Bill as an instrument that created the “framework” in which the University could be established and could operate, pointing out in this regard that:
17.He referred to the history and progress of the three constituent colleges and to the fact that it was in 1959 “that the evident progress which they had made gave promise of the realization, in due course, of a new university in which Chinese would be the principal medium of instruction.” (Emphasis added). 18.The explanatory notes to the Bill, under the heading “Objects and Reasons,” commenced by reference to the fact that :
19.The Title to the 1963 Ordinance described it as “An Ordinance to establish The Chinese University of Hong Kong, to provide for its incorporation, constitution, functions and matters connected therewith.” 20.Its preamble read as follows:
21.The Ordinance established the University and provided that it and the Colleges and members of the University were to be a body corporate. Provision was made for officers, the Council, the Senate and the Convocation. Section 19 provided that there was to be a Faculty of Arts, Faculty of Science “and such other Faculties as may be prescribed by the Statutes.” The first six years 22.The first Vice-Chancellor of the University, Dr Li Choh Ming, issued a report entitled “The First Six Years : 1963 – 1969”. The report referred to the six-year period as “one of the most exciting and crucial periods in the history of Hong Kong,” for it was a period in which Hong Kong had made astounding social and economic progress; it was a thriving economic hub, a “highly industrialised society,” with a substantial increase in population. He referred to the fact that:
The Ordinance 23.The introduction of the Chinese University of Hong Kong Bill 1976 followed the report of a further commission headed by Lord Fulton which had recommended that the federal nature of the University should be changed so that “all powers and functions, in particular academic and development policy, financial management, the matriculation of students, the appointment of staff, the determination of the curriculum, the conduct of examinations and the award of degrees, [be] vested in the University itself”[8] rather than dispersed amongst the constituent Colleges. It is unnecessary for our purposes to itemise the other specific objectives of the proposed legislation. 24.The Explanatory Memorandum to the 1976 Bill stated that the object of the Bill was to “put into effect those recommendations contained in the Report of the Commission on The Chinese University of Hong Kong relating to the structure of the University and its constituent Colleges.” There was – perhaps not surprisingly given the object of the Bill – no reference in the explanatory memorandum to the language of instruction. 25.Although we have seen in the Vice-Chancellor’s report reference to Chinese as ‘the’ principal language of instruction as well as ‘a’ principal language of instruction, the difference between which is central to this case, the preamble referred to Chinese as ‘the’ principal language of instruction. There is no basis upon which to assume that the phrase was included other than deliberately. Quite apart from the fact that scrutiny and deliberation are the hallmarks of the painstaking process of legislative drafting, we also see reference to that aspect of the preamble in the debate on the Second reading with an expression of hope by one member of the Legislative Council that there would be no attempt in the future to cast the Chinese University into the mold of the Hong Kong University.[9] 26.The preamble in full reads as follows:
27.The Chinese version of the opening declaration of paragraph (e) is as follows:
28.The argument deployed in relation to the Chinese version and the Court’s analysis of that argument is addressed in the judgment of Kwan JA.[10] 29.The Ordinance provides for the continued incorporation of the constituent Colleges and members of the University[11], who shall be the officers of the University[12], and, by s. 6 that:
30.Section 13(1) states that the Council may by special resolution make Statutes providing for the administration and membership of the University; appointments and removal of officers and teachers; for examinations; the exercise of any function by the University and by officers, teachers and other members; and “generally, the carrying into effect of this Ordinance.” The Statutes contained in Schedule 1 to the Ordinance are deemed to have effect as if made by the Council under subsection (1)[13]. 31.The Council is designated as the governing body of the University to manage its affairs, including the control and management of its property and financial affairs and to make such University appointments as it thinks proper.[14] 32.Section 8, relied upon by both parties, although to different ends, stipulates the powers and duties of the Senate:
33.Statute 14 of the Statutes addresses more specifically the powers and duties of the Senate which are expressed, again, to be “[s]ubject to the Ordinance and Statutes.”[15] Some twenty-two powers and duties are specified amongst which are powers to promote research; to regulate the admission of persons to approved courses of study; “to direct and regulate the instruction and teaching in approved courses of study and to conduct the examinations leading to degrees … .”[16]; “to consider … measures necessary for the conduct of student-orientated teaching, and to consider also measures necessary for the conduct of subject-orientated teaching”[17]; “to report to the Council on any academic matter”[18]; and “to discuss any matter relating to the University and to report its views to the Council”[19] . The Committee on Bilingualism: Establishment 34.In February 2005, the University established the Committee on Bilingualism. The trigger for, or genesis of, its establishment is explained in its report issued in July 2007:
35.The terms of reference are important:
The Committee and the Preamble 36.The opening paragraphs of the 2007 report demonstrate that the report proceeds on the basis that the University’s policy has always been one of bilingualism. What this means in terms of the issue in this case is a matter to which I shall have to return. Under the heading “Issues Discussed,”[21] it was stated that the Committee had agreed to discuss a series of topics “with a view to strengthening, improving and promoting the University’s unique tradition of bilingual education, noting that it will continue to uphold and further implement its policy on bilingualism.” The questions asked included the questions: “What is the University's bilingual policy? What are its objectives?” The next questions asked:
37.The preamble was discussed by the Committee, as is evident from the minutes of its 19th meeting on 29 June 2006. 38.That discussion evidenced a concern by some members of the Committee that the requirement or aspiration seemingly flagged by the preamble was not reflected by the reality. That reality was a bilingual policy, best described by the concept liang wen san yu, which is to say, two written languages (Chinese and English) and three tongues (Cantonese, Putonghua, and English). According to the minutes, the Secretary to the Committee suggested that “the preamble was of a descriptive or guiding nature, thus different from the legal clauses of the Ordinance and Statutes that followed.”[22] There was debate whether it was necessary for the preamble to be amended, in the course of which it was suggested that “in reality, Chinese was actually still the major language of teaching and learning at CUHK defined in the broad sense,” and that “for the benefit of the students and the University, internationalisation was undoubtedly a goal of CUHK’s long-term development”; for which reasons “consideration might be given to seeking legal advice on amending the description to ‘the principal languages of instruction shall be Chinese and English.’”[23]. This seems to be a recognition by some members of the Committee that the policy in place or, at least the one to be recommended, did not accord with the founding philosophy. 39.As against that, others suggested that the preamble “was a reflection of the actual historical situation,”; that “the preamble should only be amended when a conflict between the Preamble and the University’s situation of language teaching and learning did occur in future”[24]; and that there was significance in the fact that the phrase “shall continue” in paragraph (e) of the preamble, was placed after and therefore did not govern, the phrase “in which the principal language of instruction shall be Chinese. ” 40.In the event, the Committee decided that it was not within its remit to determine whether or not to amend the preamble.[25] 41.In its report, the Committee referred to clause (e) of the preamble stating that it was:
42.In that part of its report which addressed its recommendations, the Committee expressed its concern:
The Committee’s Report 43.The report stated that:
44.The report traced the history of the use of language at the University and said that it was clear from that history that “directions and guidelines on liangwen sanyu [had] been in place at the University since its early days,”[30]; and that right from the beginning “the University has been fully convinced that the Chinese language is essential to the acquisition of cultural awareness and national identity [but that] the University recognizes at the same time that a good command of English is necessary for its graduates to meet the needs of society”, and that “while the policy on bilingualism has remained the same throughout the past four decades… there have been adjustments in implementation from time to time in response to social changes and the practical requirements of different disciplines.”[31] 45.During the half-century that had elapsed since the establishment of University, Hong Kong had experienced unprecedented changes and with the advent of the 21st century, the University was faced with new challenges including “an increasingly globalized world [which] has raised the language requirements for university graduates. Given the global dominance of English, how should CUHK maintain its bilingual tradition – promoting caring for the Chinese language on the one hand, and enhancing students’ English proficiency on the other?” Furthermore “higher education institutions in Hong Kong have broadened their student mix, admitting more and more students from the mainland and overseas. With the increased diversity of the language culture on campus, how should CUHK make appropriate arrangements in relation to the language of instruction that will buttress the strength of its tradition of bilingual education?”[32] 46.The Committee concluded its review of this history by stating that:
47.The Committee explained that the development of bilingual education and the formulation of the University's policy on the language of instruction was bound to take into account the facts that:
48.The Committee then stated the objectives which it had formulated in determining the bilingual policy of the University:
49.Data had been collected for the 2004-05 academic year “with a view to understanding the current language practice on campus.” Not surprisingly, the data illustrated a variation depending upon departmental subject matter; for example, in science and engineering subjects, English was generally used save for laboratory sessions where Chinese was more widely used. For medical studies, while English was used for lectures, tutorials, reading materials, assignments and examinations, Cantonese was used during clinical sessions and individual supervision. The general principle that emerged and which was proposed by the Committee was that “the language of instruction should reflect the nature of the disciplines and the needs of the professions.”[35] The language of instruction: recommendations 50.The Committee’s recommendations in relation to the language of instruction require full citation:
51.Recommendations were added for “Caring for the Chinese Language and Promotion of Chinese Culture”:
52.Finally, the Committee recommended the establishment of a Committee on Language Enhancement the function of which would be to coordinate, review, improve and promote the policy on bilingual education; to assist departments in carrying out their policy; and to undertake efforts to care for the Chinese language.[36] The Senate Decision 53.At a meeting on 9 October 2007, the Senate Chairman congratulated the Committee “for coming up with recommendations, after extensive consultations, that continued to uphold the unique bilingual tradition of the University and would strengthen the language capabilities of its graduates in order for them to remain competitive in the globalized environment”. (Emphasis added) The Senate approved the establishment of the Committee on Language Enhancement “to implement the various language policies and enhancement initiatives that were recommended in the Report of the Committee on Bilingualism.”[37] The University’s position on the facts 54.There was placed before the Court of First Instance the evidence of the Registrar, Dr So, who said that the policy of the University since its foundation has been the policy of liangwen sanyu, emphasising however that uniform requirements are not imposed upon different departments and faculties to whom is left the decision as to the language of instruction. The language in fact used depended, and still depends, upon a variety of factors dictated by the nature of the discipline and the needs of the professions, taking into account as well the linguistic skills of teachers and students. His suggestion is that a study for the year 2004-05 revealed that “the percentage of Chinese used, averaged across all instructional activities of the University as a whole, is about two-thirds.”[38] The applicant does not accept that this reflects the reality. 55.Dr So emphasises the academic freedom and autonomy, “deeply rooted in the University's ethos and working methods”[39] which, he asserts, would be undermined by an inflexible language policy. He contests the suggestion that the University has failed to take into account the requirement of the preamble that the principal language of instruction shall be Chinese, and he does so by reference to the discussion about the preamble in the minutes of the Committee’s meeting and in the Committee’s report.[40] 56.He points out that the Committee did not recommend the use of more English as a language of instruction at the University and asserts that the policy formulated “merely articulates what is already current practice, and therefore will not be the cause of any changes from the status quo.”[41] 57.Finally, he warns of the significant disadvantages which, he says, would flow from a rigid and inflexible requirement to give precedence to Chinese as the language of instruction; a requirement that would entail a centralised system of administrative control over every faculty and department, and would ignore all questions of convenience, the best interests of the students and teachers, the requirements of the professions and the ability with which to ensure exchanges with students overseas. The present principal language of instruction 58.On the question whether, as matters presently stand, Chinese is in fact the principal language of instruction, the parties are not at one. It is, fortunately, not necessary for this Court to determine that factual dispute; fortunate, because it would be difficult to know where to begin and how to determine it. One would first have to decide how wide is the import of the phrase “language of instruction”; and then to engage upon some exercise in assessing the proportion of language used and how, in that exercise, to calculate percentages when lectures, seminars, practical exercises, tutorials, fieldwork, or individual tuition switch from one language to another; and, furthermore, what statistical weight to accord to academic material that was printed in one language or another. But, as I say, it is not necessary to decide the issue, because there can be little doubt that the policy recommended by the Committee and to be implemented by the Committee on Language Enhancement allows for a situation in which, whether now or in the future, Chinese is no longer the principal language of instruction, however widely “language of instruction” is interpreted. 59.Insofar as the submissions made on behalf of the University suggested that the section of the Committee’s report devoted to “Caring for the Chinese Language and Promotion of Chinese Culture” evidenced a desire to accord pre-eminence to the Chinese language, that is correct so far as it goes but it runs the danger of obfuscating the significant difference between promotion of language and culture, on the one hand, and, on the other, use of the language as a language of instruction. It appears to me to be important to recognize a distinction between:
60.The Committee’s report addresses all three policies, but the question in this case is whether it was the third that was intended by the preamble; if so, whether the policy adopted in 2007 constitutes a departure from the third; and if so, what legal consequences, if any, flow from that departure. 61.In this regard, the points have been made that the Committee’s report neither requires English to be the principal language of instruction nor does it recommend that Chinese cease to be the principal language of instruction. That is correct, yet it seems to me that the policy endorsed in 2007 is one which, whether for good reason or not, permits a departure from such policy or practice as may have been contemplated (or, if the applicant be correct, demanded) whereby Chinese was to be (and, if the University be correct, still is) the principal language of instruction. 62.The language policy recommended – and said to have been in place since the establishment of the University – is one which treats the Chinese language as a principal language of instruction, not the principal language of instruction. That much emerges from the detail of the report and its recommendations, not least in its repeated reference to the fact that the policy of the University has been, and is intended to remain one, which embraces the concept liangwen sanyu, the application of which is not wedded to the imperative of one dominant language of instruction. The fact, if it is a fact, that Chinese happens at present to be the principal language of instruction is beside the point if – as seems sufficiently clear – the policy now endorsed is one that allows the choice of language instruction to yield to subject-specific and Departmental exigencies; for once language is dictated by those exigencies, there is in reality little room left for a requirement that one language shall dominate as the vehicle for instruction. Indeed, as we have seen, the reference in the preamble to Chinese as the principal language of instruction has been interpreted as a reflection of an historical situation, rather than as a requirement, or even as an aspiration to be implemented insofar as is practicable. 63.Save to the extent that we are invited to conclude that the ramifications of an intransigent policy are such as can never have been intended by the legislature, it is not our function to pass judgment upon the merits of one policy compared with another. Our function, rather, and as always, is to determine legality. The applicant’s case 64.The applicant’s case, as it has developed before this Court, may be summarised as follows:
65.What was sought by the application for judicial review was a declaration that section 8 of the Ordinance, upon its true construction, obliges the University “to uphold and implement the principle stated in the preamble… that the principal language of instruction shall be Chinese”; a declaration that the policy as to language of instruction recommended by the Committee and implemented by the Senate on 9 October 2007 was unlawful to the extent that it was inconsistent with the principle that the principal language of instruction was to be Chinese; and an order of certiorari to bring up and quash the decision of the Senate to implement the Committee’s report. The judgment 66.The learned judge at first instance held that the preamble had no legal effect in itself; that it could not restrict the powers conferred upon the University by the operative part of the statute; that the operative part was unambiguous and the preamble could not be used to create an ambiguity; that paragraph (e) of the preamble was in any event ambiguous as to whether it was mandatory, directory, enabling, permissive or merely descriptive; that looked at in full context and against its historical background it could never have been intended so to restrict the operation of the University as to ossify its operations at a given point in time and to preclude a creative response to changing needs of the society which it served. In short, the Ordinance provided a framework and not a straitjacket. He held, further, that the restriction envisaged by the applicant ran contrary to the core of institutional autonomy. An obligation to use Chinese as the principal language of instruction would, he said, trespass on that autonomy. The Ordinance required an “updating construction”; it was to be treated as “always speaking”. He concluded that in all the circumstances, the phrase “shall be” in paragraph (e) of the preamble was not mandatory but empowering or permissive and that such power as was conferred upon the Senate by s. 8 of the Ordinance to control and direct the language of instruction was not constrained “by any legal requirement that Chinese must be or remain the principal language of instruction.”[44] 67.In relation to the Padfield argument, the judge did not accept the suggestion that the policy objective of the Ordinance was that the University should use Chinese as the principal language at all times and under all circumstances and he pointed out that the argument advanced by the applicant assumed that the Ordinance embraced only one policy objective. He said that:
68.The three aspirational missions to which he referred are the three specifically itemised in paragraph (e) of the Preamble. He concluded that there had been no failure to give effect to the objects or aims of the legislation. 69.Finally, he concluded that the Committee had not failed to take into account any relevant consideration in its deliberation or decision-making process.[46] Construction 70.The applicant’s argument runs as follows:
71.The applicant’s hurdle is the fact that the operative part of the Ordinance contains no express requirement that the principal language of instruction at the University is to be Chinese. That requirement can only materialise were it permissible to import the introductory words of clause (e) of the preamble by virtue of the phrase “subject to this Ordinance” in section 8 and even then by construing the words “shall be” as mandatory. This means that central to the analysis we are required to carry out is the part played in statutory interpretation by the preamble to an enactment. 72.A statute comprises operative or enacting parts and also parts that surround or introduce them.[47] The operative parts are those which contain the legislature’s pronouncements of law, comprising the sections (including the interpretation section), schedules, proviso and savings.[48] The introductory or surrounding parts are the long title, the preamble, and the short title (each susceptible to amendment when a Bill is undergoing legislative scrutiny) and cross-headings and marginal notes[49]. The essential point is that even though they may be utilized as an aid to interpretation of the operative parts, the parts that surround or introduce the operative parts enact nothing. 73.In order to ascertain the meaning of an operative part of a statute, the operative part is not read in isolation but in full context, meaning that “the court does not decide whether or not any real doubt exists as to the meaning of an enactment (and if so how to resolve it) until the court has first discerned and considered, in the light of guides to legislative intention, the context of the enactment, including all such matters as may illumine the text and make clear the meaning intended by the legislator in the factual situation of the instant case.” That context includes the descriptive parts of the statute, other provisions of the statute, as well as the legislative history of that Act, and “all facts constituting or concerning the subject matter of the Act.”[50] 74.The definitive case is Attorney General v Prince Ernest Augustus of Hanover[51]. 75.The Princess Sophia Naturalization Act 1705 provided in its enacting part that the Princess “and the issue of her body, and all persons lineally descending from her, born or hereafter to be born” shall be deemed natural born subjects of the United Kingdom. The respondent was a lineal descendant of the Princess Sophia and obtained a declaration that by virtue of the Act he was a British subject. The question on the appeal was whether the general words of the enacting part of the legislation which referred to “all Persons lineally descending from Her” were restricted in their effect by the preamble which referred to the “End [that] the said Princess… and the Issue of Her Body, and all Persons lineally descending from Her, may be encouraged to become acquainted with the Laws and Constitutions of this Realm, it is just and highly reasonable, that they, in Your Majesty’s Life Time… should be naturalized, and be deemed… natural born Subjects of England.” ( Emphasis added) 76.At the time of enactment, the Princess had sons and grandchildren alive, some or all of whom were not born on English soil and therefore, but for the Act, were not British subjects. 77.The Attorney General argued that the effect of the Act was to naturalise only those lineal descendants who were born in the lifetime of the Queen Anne; that since there was a conflict between the intent of the Act as shown by clear words of the preamble and the general words of the enacting part, the Act should be construed strictly to ensure that its effect went no further than was intended by Parliament.[52] The converse argument, for the respondent, was that whilst in interpreting a statute one should read the whole Act, including the preamble, in order to ascertain Parliamentary intent, the preamble was of no assistance if it was unclear and that in this case the preamble was unclear and the enacting part plain and unambiguous, so that the restriction for which the Attorney General contended was not tenable. 78.Viscount Simonds said:
79.Lord Normand referred to the fact that much of the Attorney’s argument “rested on the basis that the enacting words were general and that general words are more susceptible of control by context than specific words… ,”[55] which is an argument advanced in the present case as well, the suggestion being that the powers and duties of the Senate to which reference is made in s. 8 are expressed in the most broad and general terms. Lord Normand said:
80.The difficulty for Mr Chang’s reliance on the preamble in the Ordinance is made readily apparent by consideration of the issue in Hanover and of the passages which I have cited. The suggestion in Hanover was that the operative part of the Act of 1705 was restricted by its preamble insofar as each addressed the same question, namely, which lineal descendants were entitled to naturalization. In order to succeed in his argument that the Ordinance imposes a duty upon the University to use Chinese as the principal language of instruction, the applicant must find that duty in the operative part of the Ordinance. If there were reference either expressly or by necessary implication in the operative part to the language of instruction and the meaning or effect of that reference were unclear or so framed as permitted of restriction in its operation, it would be permissible to use the preamble in order to ascertain the effect of the operative part. 81.But the bald fact is that the operative part of the Ordinance does not address the question of language at all. It is difficult to see what it is about the operative part of the Ordinance in this regard which is amenable to clarification by the preamble. In other words, what, in my judgment, the applicant is unable to do, in relation to the language issue, is to answer, in a manner that can assist his case, the question that has to be posed: “What is it in the operative part of the Ordinance, the meaning of which may be ascertained or clarified by reference to the preamble?” 82.The answer to that suggested difficulty is said by the applicant to lie in an ambiguity created by the generality of the powers conferred by section 8. 83.The position has been summarized as follows:
84.It is the emphasised sentence upon which Mr Chang relies in reference to the breadth and generality of the powers conferred by s. 8. 85.Statements of principle of the kind upon which Mr Chang wishes to place emphasis may themselves be open to misapplication unless given meaning by reference to example and by study of the authority from which the principle is said to derive. The footnote to the emphasized passage refers to Bowtell v Goldsborough, Mort & Co Ltd[58], a case which turned upon the meaning of the words “act of trespass” in s. 2 of the Limitation of Actions for Trespass Act 1884.[59] 86.Section 2 of the 1884 Act provided that in actions for trespass to land in which the plaintiff’s title was not disputed by the defence, the plaintiff was not entitled to recover damages for any “act of trespass” committed more than 12 months before the action. The question in the case was what was intended by the phrase “act of trespass.” 87.The plaintiffs had successfully brought an action of ejectment to recover possession of land of which the defendant had been in occupation for some considerable time; and then issued proceedings in trespass for mesne profits in respect of the period during which the defendant had been in possession. The plaintiff contended that s. 2 did not limit the mesne profits that might be awarded, since the provision was directed at distinct or isolated trespass and prayed in aid the preamble which suggested that the purpose of the Act was “to discourage actions between neighbours for trifling and long past trespasses on land the title to which is not in dispute.” The defendant asserted that the general words of s. 2 were clear and that even if they went beyond the preamble, the preamble was not available to cut down the clear intent of the operative provision; a proposition with which Griffth CJ agreed, though with qualification:
88.In the event, the Court found it unnecessary to resort to the preamble but decided the matter on the basis that the construction advanced by the defendant could not have been the legislature’s intention, for it was a construction that would work an injustice since it would mean that whether a man would be deprived of compensation for loss of his land would depend “on the circumstance whether the defendant, when sued, chooses or does not choose to dispute the owner’s title.”[61] The Court applied the principle that if the words of an enactment were capable of an interpretation which would work injustice yet at the same time it was possible upon a grammatical or reasonable construction to read the enactment so that an injustice was not occasioned, the assumption ought to be made that the legislature did not intend the construction that led to injustice.[62] 89.So one readily discerns, first, the manner in which generality may give rise to ambiguity and, secondly, how difficult it becomes for the applicant to infuse the broad powers conferred by s. 8 with an ambiguity, let alone an ambiguity susceptible of resolution by reference to the preamble. I note from the report in Bowtell that in the course of argument, O’Connor J said that : “There may be cases where the words as they stand are plain enough, but, when you come to apply them to the subject matter with which they deal, difficulties and ambiguities appear.”[63] That is what happened in Bowtell, and I accept that the mere apparent plainness of the words in s. 8 does not of itself answer the applicant’s argument. Yet it is difficult to see what practical difficulty arises from an application of the plain meaning of the words in the section. 90.Where in my judgment the applicant’s argument goes wrong is that it equates the provision of broad powers, on the one hand with, on the other, generality of expression susceptible to more than one meaning. 91.The point I seek to make may be illustrated by reference to R v Secretary of State for the Home Department Ex p. Brind[64] which concerned the exercise of powers by the Secretary of State pursuant to the provisions of the Broadcasting Act 1981 and of a clause of a broadcasting licence agreement, each of which empowered the Secretary to require the Independent Broadcasting Authority and the British Broadcasting Corporation, respectively, to refrain from broadcasting or sending “any matter or classes of matter”[65] specified in a notice issued by him. There was argument as to the meaning in this context of “matter”, the suggestion on behalf of the applicants being that it related to specific information and did not confer power to impose a blanket ban on all information from a particular source. It was said on behalf of the applicants that the statutory provision and the relevant clause of the agreement were ambiguous and unclear in that each was arguably capable of bearing a number of different interpretations as to the width of the conferred power. This argument was rejected by their Lordships, Lord Ackner saying that:
92.So it is in the present case, although in the present case there appears no phrase as inherently vague as “any matter.” What has happened in this case is that s. 8 confers wide powers upon the Senate to control or regulate specified activities, which include “instruction, education and research.” It is not suggested in this case that the words used are themselves so general as to generate doubt about the meaning of “instruction,” for example. What “instruction” means in this context is clear enough. There is a limit placed upon the powers under s. 8 which are there specified; in other words, the control and regulation may only be exercised for the purposes particularised and generally within the limits required by public law principles. But there is no room, so it seems to me, for reading in some doubt as to which language of instruction is to be used or permitted. The bottom line is this, that there is no reference to language at all. If there were, and if the provision as to language were so general, or otherwise so phrased, as to give rise to ambiguity either on the face of the provision or in terms of practical application, the preamble might come into play. But no such situation arises. 93.The omission in the enacting part of any reference to language of instruction must have been deliberate. Either a mandatory or directory provision could have been included in the operative part, yet none was. That can hardly have been an oversight; the issue of language was too important and was expressly mentioned in the preamble. There may be several reasons for the omission, though in this regard one speculates. It may be that it was omitted for the reason that is advanced by the University in this case: that it was thought that such a requirement would be inimical to the University’s autonomy. It may be that it was omitted because it was thought that such a provision would be blind to the needs of those who aspired to enter the professions; or would hinder internationalization of the institution; or would be difficult to police; or it may have been a combination of all these factors. But even if, as seems most unlikely, it was overlooked, it is a requirement that cannot be created by the preamble alone. 94.That difficulty is sought to be overcome by reference to the phrase “subject to this Ordinance” in s. 8. It is said that the Ordinance includes the preamble so that “subject to this Ordinance” means subject to the whole Ordinance including the preamble. Whilst that must be correct as far as it goes, the preamble does not by reason of that phrase accrue a power or role greater than that otherwise enjoyed. A preamble is always a preamble. It is never an enacting or operative part of the statute. The phrase “subject to this Ordinance” means, I would suggest, subject to what is enacted by the Ordinance. To ascertain what is enacted, the preamble may be utilized as an aid but no more, and that takes us back to square one; so the argument is circular and carries the applicant’s case no further. 95.Arguments have been deployed before us, and discussed in the judgment at first instance, as to the intent of the legislature to be gleaned from history and from the practical ramifications of one interpretation rather than another; whether the words “shall be” in the preamble are mandatory or directory; whether the construction of the operative part for which the applicant contends would breach the autonomy guaranteed to educational institutions by art. 137 of the Basic Law and how that guarantee sits with the duty imposed on the Government by art. 136 to formulate “policies on the development and improvement of education, including policies regarding… the language of instruction.” 96.For the purpose of determining whether the Ordinance, properly construed, imposes an obligation upon the Senate to ensure the use of Chinese as the principal language of instruction it is not, in my judgment, necessary to address any of those issues; for it seems to me clear enough, for the reasons which I have provided, that the preamble neither of itself creates that obligation nor so affects a construction of the operative part of this Ordinance as to give rise to that obligation. Padfield 97.The next argument is that the policy adopted by the Senate is one that is inconsistent with the policy and objects of the Ordinance. 98.The oft-cited passage from Padfield v Minister of Agriculture, Fisheries and Food runs as follows:
99.Insofar as it might be suggested that the policy and object of the Ordinance is to require Chinese to be the principal language of instruction, that is a suggestion which must fail by reason of the proper construction of the Ordinance. As the judge correctly concluded, it is not open to the applicant to achieve through “the back door of Padfield,” that which he could not achieve through “the front door of statutory interpretation”[68]. 100.It is in the circumstances unnecessary to address the question whether the word “shall” in the preamble is to be read as mandatory or as directory. It suffices to say that if it were necessary to construe the first sentence of paragraph (e) of the preamble to this end, the correct answer, in my judgment, would be that in full context it cannot have been intended to be mandatory; this regardless of the consideration that a preamble cannot create a power or impose a duty not reflected in the operative part. 101.Although the word “shall” is prima facie mandatory, “that word has often been rightly construed as being directory. Everything turns upon the context in which it is used… ”: Grunwick Processing Laboratories Ltd v Advisor, Conciliation and Arbitration Service and another.[69] The context might demonstrate that it is facultative, in other words that it is permissive or empowering.[70] In this instance, so it seems to me, the context militates against a mandatory connotation. 102.Apart from the fact that in law, the English and Chinese language texts of the Ordinance are equally authentic [71] and the Chinese text, for the reasons given by Kwan JA, tends towards a non-mandatory interpretation, this is an Ordinance which created a framework in which a tertiary educational edifice was to be established and was to develop. The particular edifice envisaged was one intended to provide instruction in “ the humanities, the sciences and other branches of learning of a standard required and expected of a University of the highest standing,” including the means by which professional qualifications might be secured. That, in the main, was and is the purpose of this Ordinance and it seems clear enough to me that to read in a mandatory provision as to the principal language of instruction would be to insert practical obstacles in the path of that main purpose. It presupposes a ready means by which to police or measure adherence to the requirement; policing which would require control by a centralised body necessarily less attuned than departmental experts to the optimum subject-specific vehicles for instruction. A relevant consideration 103.It must follow from the analysis thus far that the Senate is empowered to formulate the University’s language policy unconstrained by a requirement that the principal language of instruction be Chinese; in other words, that it has a discretion as to the principal language or languages of instruction. 104.However, this is not the end of the matter, for the application for judicial review raised an argument to the effect that the Senate failed to have regard to a relevant consideration. 105.As pleaded in the notice of application for leave, the complaint was that in determining the facts which should dictate the language of instruction, “there was no mention of the requirement that the principal language of instruction shall be Chinese” and that the University had “elected to ignore the provision in the Preamble which requires that [the] principal language of instruction shall be Chinese.” There is a further complaint that the Committee’s reference to commitment to caring for the Chinese language itself illustrates a failure to take into account a requirement of a quite different nature signalled by the preamble, namely, the Chinese language as an instrument of instruction. 106.The goalposts have moved somewhat in the presentation of this appeal. As presented, the argument was that even if the preamble were not mandatory in effect or intent as to the language of instruction, it was evidence of a wish on the part of the legislature that, in so far as may be practicable, Chinese was to be the principal language of instruction and that it was that clear wish which constituted the relevant fact which the Senate failed to take into account or, if it did take it into account, it failed to accord it sufficient weight. 107.For reasons at which I shall shortly arrive, the argument must, in my judgment fail. But I do not entirely dismiss the concerns which underlie it. Most particularly deserving of some consideration are the Committee’s terms of reference, for they appear to me to proceed upon a strange premise. The opening words of the Committee’s terms of reference were:
108.It is difficult to see upon what basis it was said that the University’s founding philosophy was one that placed equal emphasis on Chinese and English. It is said, in the evidence, that as a matter of practice, that is what happened. That may be so, but still, the founding philosophy was surely one that envisaged Chinese as the principal language of instruction:
109.None of these recommendations was made in a vacuum. They were recommendations made in the context of historical and local societal imperatives. There was a need to cater for large numbers of persons coming into Hong Kong as well as for a significant proportion of Hong Kong’s settled student population, who were effectively excluded from tertiary education by the language policy of the then sole existing University. Not only were these recommendations publicly announced, but the endorsement of them by the Government was publicly announced, culminating in the enactment of the 1963 Ordinance. It was, in other words, publicised governmental policy that the new university was one that would not only place emphasis on Chinese culture, Chinese history and the promotion of the Chinese language but would also utilise Chinese as its main language of instruction to those accepted for study at the institution. Putting entirely aside for the moment the words of the preamble, I fail to see, against that background, how it can sensibly be contended that the University’s founding philosophy, in relation to language, was one of “placing equal emphasis on Chinese and English.” 110.But the analysis cannot properly cease at this point, for the question is whether the Senate in coming to its decision failed to take into account a fact or consideration which, by law, it was bound to take into account or whether there has been demonstrated a material error of fact in its decision-making process such as to vitiate the decision. 111.By reference to no provision of the operative part of the statute, nor indeed to any of the three aims particularised in paragraph (e) of the preamble, the applicant contends that the intent of the preamble, as to the language of instruction, was nonetheless a fact which the Committee (and the Senate) were duty-bound to take into account. I note, in passing, that it is the Senate’s decision which is the subject of this judicial review and that the applicant has attributed to the Senate the reasoning of the Committee: it seems sensible on the facts of this case to conclude that that reasoning was indeed adopted by the Senate. 112.It is not, in the event, necessary, in my opinion, to decide whether the Committee and the Senate were in law duty-bound to take the preamble’s reference to language into account. I am prepared for present purposes to assume the existence of such a duty. I say that it is not necessary to make that decision because it seems clear enough that the preamble was in fact taken into account. The decision-making process did not stop at the terms of reference and, more particularly, the terms of reference did not, as it happened, stop the Committee from considering the preamble and its intent. I have referred in some detail to the Committee’s specific consideration of the preamble.[77] We see that the Committee came to the conclusion that the preamble was to be “interpreted in its historical context”, meaning that it was to be viewed in the context of a need at the time of the University’s establishment. 113.There might be some traction in the applicant’s argument if he could demonstrate that that assessment of the surviving relevance of the preamble was palpably incorrect. I did not think that that can be demonstrated. The original preamble – that is to say that 1963 preamble – talked of the desirability of establishing a Chinese University in which the principal language of instruction would be Chinese. It spoke to a need of that time. It may well have had in mind a long-lasting policy. But the framers of the Ordinance did not make that a requirement. Given the nature of the creature to which the statute gave birth, namely, a university expected to be one “of the highest standing” which would provide a seat of learning for generations to come in changing economic and political circumstances, the character of which circumstances could not be foreseen, it is impossible to say that the interpretation placed upon the preamble by those who gave it anxious consideration in and before 2007 was an incorrect one. There is room, certainly, for a respectable alternative interpretation but it can hardly be said that the Committee’s analysis of the preamble’s reference to language and its effect was clearly wrong. The place of that reference in the Ordinance and in the 1976 preamble itself and the way in which it is phrased in that place is, on any view, odd, and, in my judgment, the appellant is not in a position to transpose that oddity and the view taken of it by the Senate into a successful ground for review. Conclusion 114.I would, therefore, dismiss the appeal and make an order nisi that the costs of the appeal be to the respondent. Hon Kwan JA: 115.I have had the benefit of reading in draft the judgment of the Vice-President. I agree with his judgment and the order he proposes to make. 116.I will only deal with the argument raised in relation to the Chinese text of The Chinese University of Hong Kong Ordinance, Cap. 1109. The Chinese text of the relevant part in paragraph (e) of the preamble to the Ordinance reads: “現宣布香港中文大學（其主要授課語文為中文）須繼續 - …”[78]. 117.Cheung J construed the Chinese text in paragraphs 64 and 65 of his judgment. He was of the view that the use of the character “為” may connote a mandatory requirement, just as it may connote a descriptive or permissive meaning. It would depend on the context. So in this sense, he found no real inconsistency between the Chinese text and the English text. He held there is an ambiguity in the relevant part (“in which the principal language of instruction shall be Chinese”) in that it is not free from doubt whether it is meant to be a mandatory requirement or not, and this alone is a reason for saying that the preamble simply cannot be used as an aid to construe the provisions in question in the enacting part. 118.Mr Chang, SC submitted on behalf of the applicant that whilst it is correct for the Judge to hold there is no real inconsistency between the Chinese text and the English text of the relevant part of the preamble, the Judge has erred in that for both texts the relevant part of the preamble is clearly prescriptive in expression, intent and effect, whether construed by reference to the English text (“shall be”) or the Chinese text (“為”). Before the learned judge, the respondent had contended that the words in the English text might be read as either prescriptive or descriptive whereas the words in the Chinese text are clearly descriptive. On appeal, it did not contend there is any difference between the Chinese text and the English text. Its position was that whether in English or in Chinese, the relevant part of the preamble may be descriptive or prescriptive and is ambiguous. 119.The court was referred to the meanings of the character “為” in various Chinese-English dictionaries. The meanings that may be relevant for present purpose as shown in these dictionaries are as follows:
120.Mr Chang gave six examples in Hong Kong legislation[79] and one example in the decision of the Standing Committee of the National People’s Congress (adopted on 28 June 1990) in which the words “shall”, “shall be” and “為”[80] would appear to be used in a prescriptive sense. He contended that the word “為” has a clear prescriptive meaning in Chinese. 121.Mr Paul Lam, appearing with Lord Lester, QC for the respondent, provided the search results on the glossary of Hong Kong legislation and came up with 97 examples in which the words “shall be” appeared. The Chinese text of these legislative provisions, other than using the character “為”, also contained variants such as “須”, “即屬”, “即為”, “須...為”, “須作為”, “屬”, “是”, “可”, “可…為”. It would appear from the search results that in relatively few instances was the character “為” used alone. In a number of instances, “為” was used together with an auxiliary verb or adjunct like “須” (meaning “must”), “即” (meaning “be, mean, namely”) or “可” (meaning “can, may”) to make clear or amplify its meaning. 122.Mr Lam submitted, with reference to the meanings in dictionaries and the search results in the glossary of local legislation, that the character “為” would have to be construed in its proper context. He pointed out in the English text of the relevant part of the preamble, the word “shall” appeared twice: “it is declared that The Chinese University of Hong Kong, in which the principal language of instruction shall be Chinese, shall continue to - …”. In the Chinese text, the first use of “shall” appeared as “為”, whereas the second use of this word appeared as “須”. He submitted this is a strong indication that the first use of “shall” in the English text and the use of “為” in the Chinese text was not intended to be prescriptive. 123.I am inclined to think Mr Lam has a valid point. At the very least, the use of “為” in the Chinese text is ambiguous, in contradistinction to the use of “須” in the same sentence which is far less ambiguous. 124.I have also considered these entries in the Hong Kong English-Chinese Legal Dictionary, Butterworths, 2005:
125.If the Chinese text of the relevant part of the preamble had read “須為” instead of “為”, this may be prima facie indicative of a mandatory provision. On the present wording, I do not think the conclusion of the learned judge that the Chinese text of the relevant part of the preamble is ambiguous could be faulted. Hon Chu J: 126.I agree with the judgments of Stock VP and Kwan JA. Hon Stock VP: 127.Accordingly, the appeal is dismissed. There will be an order nisi that the costs of the appeal be to the respondent. Nothing in the event has turned on a respondent’s notice that has been filed and there will be an order nisi that there be no order as to the costs of that notice.
Lord Lester of Herne Hill, QC and Mr Paul Lam, instructed by Messrs Lo & Lo for the Respondent Mr Denis Chang, SC and Ms Jocelyn Leung, instructed by Messrs Tang, Wong & Chow, assigned by Director of Legal Aid, for the Applicant [1] Executive Summary para. 1. [2] para. 11. [3] The emphasis is that which is supplied in the Report. [4] para. 51. [5] para. 64. [6] Official Report of Proceedings, 21 August 1963. [7] Bill No. 25 of 1963. [8] Secretary for Social Services, Official Report of Proceedings, 13 October 1976. [9] Official Report of Proceedings, 8 December 1976, Hansard p. 281. [10] paras. 115 to 125 below. [11] s. 4. [12] s. 5. [13] s. 13(2). [14] s. 7 [15] Statute 14(4). [16] Statute 14(4)(c). [17] Statute 14(4)(d). [18] Statute 14(4)(m). [19] Statute 14(4)(n). [20] Report of the Committee, Appendix 1. [21] Appendix 2. [22] Minutes para. (9). [23] Minutes para. (12) (a) (iii) and (iv). [24] Minutes para. (12)(b). [25] Minutes para. (16). [26] Report para. 3.3. [27] Report para. 7.3. [28] Report para. 2.2. [29] Report para. 2.3. [30] Report para. 3.4. [31] Report para. 3.5. [32] Report para. 3.6. [33] Report para. 3.7. [34] Report para. 4.3. [35] Report para. 6.2. [36] Report para. 7.25. [37] Minutes Senate meeting 9 October 2007, para. 1-14. [38] Affirmation 18 April 2008, para. 60. [39] Affirmation para. 64. [40] Affirmation paras. 77-79. [41] Affirmation para. 89. [42] Report para. 7.12.4. [43] [1968] AC 997. [44] Judgment, para. 106. [45] Judgment para. 119. [46] Judgment para. 125. [47] Cross Statutory Interpretation, 3rd ed., Chapter 5. See also Craies on Legislation 9th ed., para. 26.1.1. [48] Halsbury’s Laws of England 4th ed., Reissue, Vol 44(1) para. 1258. [49] Cross, above, pp 123-124. [50] Bennion on Statutory Interpretation 5th ed., sections 201 and 202 at pp 585 and 588. [51] [1957] AC 436. [52] at p. 441. [53] Powell v Kempton Park Racecourse Co Ltd [1897] 2 QB 242, 299. [54] at pp 460-463. [55] at p. 465. [56] at pp 467 -468. [57] Anne Winckel The Contextual Role of a Preamble in Statutory Interpretation [1999] 23 Melbourne University Law Review 184 at pp. 186-187. [58] (1906) 3 CLR 444. [59] New South Wales. [60] at p. 451. [61] at p. 454. [62] at pp 455-456 citing Plumstead Board of Works v Spackman 13 QBD 878 at p. 887. [63] at p. 447. [64] [1991] 1 AC 696. [65] In the licence agreement it was “any matter or matters of any class”. [66] at p. 761. [67] [1968] AC 997 at p. 1030, per Lord Reid. [68] Judgment para. 112. [69] [1978] AC 655 at p. 698. [70] Van Huyssteen NO and others v Minister of Environmental Affairs and Tourism and others [1995] 4 LRC 340 at p. 356; and In re Davis (1947) 75 CLR 409 at p. 418. [71] See s. 10B Interpretation and General Clauses Ordinance, Cap. 1. [72] see para. 12 above. [73] para. 12 above. [74] para. 12 above. [75] para. 15 above. [76] para. 17 above. [77] paras. 36 to 46 above. [78] The text in English reads: “it is declared that The Chinese University of Hong Kong, in which the principal language of instruction shall be Chinese, shall continue to - …”. [79] The Trustee Ordinance, Cap. 29, section 109; the Immigration Ordinance, Cap. 115, section 13DA(4); the Detention Centres Ordinance, Cap. 239, section 10; the Port Control (Cargo Working Areas) Ordinance, Cap. 81, section 5A(6); the Immigration (Refugee Status Review Boards) (Procedure) Regulations, Cap. 115L, section 4(3); and the Legal Officers Ordinance, Cap. 87, section 4(2). [80] In two of these, the relevant words are “即為”, in one example the relevant words are “可…為”. [81] The English text reads: “Mandatory Enforcing strict compliance; not directory. Whether a provision in a statute conferring a power or imposing a condition to be observed is mandatory is a question of the intention of the legislature in the context of the statute as a whole … . While the use of the word ‘shall’ or ‘must’ is prima facie indicative of a mandatory provision, care should be taken before identifying a provision to be mandatory to ascertain the consequences if the requirement is not complied with, particularly when such consequences are not spelt out in the provision …”. [82] The English text reads: “Mandatory rule A rule compelling or demanding a course of action, which conveys an obligatory command leaving no room for option or discretion. A mandatory rule is generally expressed by the use of ‘shall’ (rather than ‘may’). It is contrasted with the directive rule.” [83] The English text reads: “Directory In relation to a statutory provision, not requiring strict compliance, facultative not mandatory. Whether a statutory provision requiring a thing to be done is directory is a question of the intention of the legislature ascertained by attending to the whole scope of the statute in question … Expressions such as ‘may’ or ‘in its discretion’ are prima facie facultative and directory rather than mandatory …”. [84] The English text reads: “Directive rule A rule permitting a course of action, and leaving room for option or discretion. A directive rule is generally expressed by the use of ‘may’ (rather than ‘shall’). It is contrasted with a mandatory rule.” |
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