Ng Wing Hung v. Hong Kong Examinations and Assessment Authority

HCAL 79/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2010

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BETWEEN

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Before : Hon Au J in Court

Date of Hearing: 16 September 2010

Date of Decision: 22 September 2010

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D E C I S I O N

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A. Introduction

1.The Applicant Mr Ng applies for leave to commence judicial review proceedings against certain decisions (“the Decisions”) announced[1] by the Hong Kong Examinations and Assessment Authority (“EAA”) in relation to the Hong Kong Certificate of Education Examinations (“HKCEE”) and the Hong Kong Advanced Level Examinations (“HKALE”) offered and held by EAA.

2.According to Mr Ng, the Decisions are to the effect that:

(1) EAA would hold the HKCEE for the last time in 2011 and they are only offered to private candidates but not school candidates. Further, for the 2011 HKCEE, only papers in 22 subjects will be offered for the candidates to take instead of 39 subjects as offered in 2010.

(2) EAA would hold the HKALE for the last time in 2013 and they are also offered to private candidates only.

3.In this application, Mr Ng says the Decisions are contrary to and inconsistent with Article 136 of the Basic Law and thus unconstitutional. 

4.Article 136 of the Basic Law provides as follows:

“Article 136

On the basis of the previous educational system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of education, including policies regarding the educational system and its administration, the language of instruction, the allocation of funds, the examination system, the system of academic awards and the recognition of educational qualifications.

Community organizations and individuals may, in accordance with law, run educational undertakings of various kinds in the Hong Kong Special Administrative Region.”

5.Mr Ng accepts that under Article 136, developments and changes of education policies and system, including examination system, are envisaged and allowed. However, he says any such changes must be “incremental and gradual” and founded on the previous system directly or indirectly.  In support of this, he relies on the authority of Catholic Diocese of Hong Kong Also known as The Bishop of the Roman Catholic Church in Hong Kong Incorporation v Secretary for Justice [2007] 4 HKLRD 483 per A Cheung J at paras 120- 122.

6.Mr Ng contends that in (a) reducing the subjects offered in HKCEE from 39 to 22 in 2011, (b) limiting only private candidates to be entitled to take the HKCEE in 2011 and the HKALE in 2012, and (c) offering the last round of HKCEE and HKALE respectively in 2011 and 2013, the Decisions do not represent a reasoned, gradual and incremental change in the examinations policy, and is thus inconsistent with Article 139. 

7.Mr Ng runs a similar argument based on what he says to be the rights under Article 13 the International Covenant on Economic, Social and Cultural Rights (“the ICESC”), which relates to the right to education. By Article 39 of the Basic Law, the ICESC “as applied to Hong Kong shall remain in force and shall be implemented through the laws of Hong Kong Special Administrative Region”. 

8.Mr Ng further argues that there is a legitimate expectation on the candidates who took the HKCEE in 2010 to be able to repeat taking those subjects in 2011.  The Decisions in not offering 17 subjects in 2011 violates this legitimate expectation and should therefore also be quashed.

9.He asks in his intended judicial review for the relief of mandamus requiring the EAA (a) to offer the HKCEE in the coming future to both private and school candidates in all those subjects that have been offered 2010, and (c) to offer the HKALE in the coming future to both private and school candidates. 

B. This leave application

B1. The tests

10.For leave to be given, Mr Ng has to, amongst others, satisfy the Court on the materials presented at this stage that:

(1) He has a prima facie case of sufficient interest to bring the intended judicial review application. See: Hong Kong White Book 2010, para 53/14/18; s. 23K(3) of the High Court Ordinance (Cap 4) and O. 53 r 4A(7) of the Rules of High Court (Cap 4A).

(2) There is a reasonably arguable claim which enjoys a realistic prospect of success: Chan Po Fun v Winnie Cheung (2007) 10 HKCFAR 767, [2008] 1 HKLRD 319, paras 12-16.

11.In my view, Mr Ng has failed on both grounds. My reasons are as follows.

B2. Sufficient interest?

12.Under O 53 r 4A(7) of the Rules of High Court, the Court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application for judicial review relates.

13.Whether an applicant has the necessary sufficient interest to bring a judicial review is a matter of degree and extent, ranging from one end where the applicant is directly affected by the challenged decision, to the other extreme where he is only a meddlesome “busybody”^[2]. At the leave stage, the Court is to consider whether the applicant has shown a prima facie case of sufficient interest with the materials then presented.  If leave is given, the Court on the same question of sufficient interest may look at the matter again at the substantive judicial review hearing when all the evidence is placed before it^[3].

14.In the present application, in relation to the question of locus and thus sufficient interest, Mr Ng fairly informs the Court in his supporting affirmation that he:

“had attended two local tertiary academic institutes and once been a student of LLB. It is indeed not probable, though not impossible, for him to take part in the coming [HKCEE] and/or [HKALE].” (emphasis added)

15.Given his own evidence that it is improbable for him to take part in the relevant examinations, I am of the clear view that Mr Ng has not shown a prima facie case of sufficient interest to bring the intended judicial review in relation to the Decisions.  It is not shown that he or any of his rights, whether as a general member of the public or by himself, is in any realistic sense or degree affected or likely to be affected by the Decisions either directly or indirectly.

16.Notwithstanding his above evidence, at the hearing before me, Mr Ng says he now intends and is prepared to enrol himself to take the HKCEE in 2011 in the subject of French (which was offered in 2010 but not in 2011)^[4]. He therefore submits that he has sufficient interest to bring the judicial review. 

17.In my judgment, this self-created scenario arisen well after the Decisions had been announced does not constitute sufficient interest for Mr Ng to bring the intended judicial review against the Decisions.  Mr Ng is simply not “affected” directly or indirectly by the Decisions for not being able to enrol himself to take the French paper in the 2011 HKCEE.  He had not considered or intended to take the French examination in 2011 before the Decisions were announced.   He only comes up with that purported intention after the Decisions were made and therefore after he is fully aware of the fact that French is no longer offered as subject under the 2011 HKCEE.   It is therefore not a case where his conducts or intended conducts have been affected by the Decisions whether directly or indirectly. 

18.In fact I would go further. In light of his own evidence quoted at paragraph 14 above, his change of stance at the hearing in order to make a case of sufficient interest is in my view an abuse of process.

19.For these reasons, I conclude that Mr Ng has failed to show a prima facie case of sufficient interest to bring the intended judicial review, and I would refuse leave on this ground alone.

B3. Realistic prospect of success?

20.Given my above conclusion, I would only deal with this ground briefly.

21.As I mentioned above, Mr Ng accepts that changes of the education policy and examination system in Hong Kong are permitted under Article 136 of the Basic Law, albeit (in his case) the change must be a gradual and incremental one.

22.At the same time, he is also not challenging the decision to introduce the Hong Kong Diploma of Secondary Education Examinations (“HKDSE”) in 2012 as a result of the widely known underlying changes in the secondary and tertiary education structure and system.   The HKDSE is intended to replace the HKCEE and HKALE.  As such, changes are naturally and necessarily anticipated of the HKCEE and HKALE as result of the unchallenged changes in the secondary and tertiary education system and the introduction of the HKDSE.

23.However, Mr Ng in the intended judicial review (as summarized above) asks for the relief of mandamus to effectively require the EAA to continue to hold the HKCEE and HKALE in “the coming future” (without a time limit) in the same way as they were held in 2010.  This effectively permits no change at all to the HKCEE and HKALE.

24.In the premises, I see no realistic chance for Mr Ng to succeed in the judicial review, as this is contrary to and inconsistent with the position he himself adopts and as set out in paragraphs 21 and 22 above.

25.The same applies to his reliance and arguments on the ICCPR.

26.Insofar as he is relying on the alleged legitimate expectation in support of the intended judicial review, he is also bound to fail.   For the same reasons explained above under the section of sufficient interest, any such legitimate expectation, even if (for the sake of argument) it exists, simply does not apply to Mr Ng himself.

27.I would therefore also refuse leave on the ground that his claim does not have any realistic chance of success.

C. Conclusion

28.For the above reasons, I refuse Mr Ng’s application for leave to commence the intended judicial review.

The Applicant, acting in person, present