Li Yiu Kee v. The Chinese University of Hong Kong

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)

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BETWEEN

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Before: Hon Stock VP, Kwan JA and Chu J in Court

Date of Hearing: 13 December 2010

Date of Judgment: 13 December 2010

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Hon Stock VP (giving the judgment of the Court):

1.By a judgment dated 23 July 2010, we dismissed the applicant’s appeal against the decision of Andrew Cheung J in February 2009 by which he dismissed an application for judicial review of the decision of the Senate of the Chinese University to adopt a report of the Committee on Bilingualism.

2.There is now before us a Notice of Motion by which the applicant seeks leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, on the basis that there are questions involved in the appeal which by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for its decision.

3.The application is not opposed by the respondent University.

4.We agree that, subject to some minor amendments, the questions posed by the Notice of Motion raise matters of public importance which ought to be submitted to the Court of Final Appeal for its decision.

5.The questions, as amended by us, are as follows:

(1) Whether on a true construction of The Chinese University of Hong Kong Ordinance, Cap. 1109 (“the CUHKO”), the provision in Preamble that the principal language of instruction shall be Chinese (“the Language Provision”), taken by itself or in conjunction with section 8 or any other operative provision of the CUHKO, has any mandatory effect in law and that the Chinese University of Hong Kong (“the University”) is under a mandatory statutory duty to implement the same according to its tenor and effect;

(2) Further or in the alternative, whether on a true construction of the CUHKO, the Language Provision has the effect in law of directing the University to use Chinese as the principal language of instruction, at least insofar as it is practicable to do so;

(3) Further or in the alternative, whether on its true construction, the legislative intent and policy of the CUHKO was that Chinese was to continue to be the principal language of instruction or alternatively should so continue insofar as it is practicable to do so;

(4) If the answer to Question 3 is yes, whether the policy adopted by the Senate of the University in the Report of the Committee on Bilingualism runs counter to or is otherwise inconsistent with the legislative intent and policy and is therefore unlawful by reason of the principle stated in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997;

(5) Further and/or alternatively, if the answer to Question 1 or 2 is yes, whether the adoption by the Senate of the policy contained in the said Report was and is unlawful and of no effect;

(6) Further and/or alternatively, having regard to the answers to the questions above, whether the decision in adopting the Report was Wednesbury unreasonable.

6.Accordingly leave is granted.

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