TONG WAI YEE WINNIE v. SECRETARY FOR EDUCATION AND ANOTHER

HCAL 1231/2021

[2023] HKCFI 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1231 OF 2021

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DECISION  ON  ASSESSMENT

OF  DAMAGES

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A.  Introduction

1.  In my Judgment dated 13 May 2022, [2022] HKCFI 1402 – the definitions in which I continue to use – I found that the Applicant had made out grounds for judicial review of the relevant Decision. Further, on some points which I thought need not be determinative, I found very strong arguments in favour of the Applicant’s case. The tone of my Judgment indicates that I was deeply unimpressed by much of the EDB’s stance in the proceedings and many of its previous acts. In short, I think the Applicant was treated very shabbily indeed, with at least apparently obvious direct adverse financial consequences to her.

2.  In the exercise of my discretion as to relief, I quashed the Decision, and I also ordered damages, the quantum of which would be assessed.

3.  I stated that the matter of assessment would be dealt with on paper submissions, and I gave directions accordingly. After a first round of submissions, I thought further assistance would be provided by further submissions, which I also directed. Those various submissions have been filed by the Applicant for herself, and by Ms Jess Chan, Senior Government Counsel for the Secretary and the EDB and subsequently by Mr Yang-Wahn Hew of Counsel together with Ms Chan.

4.  This is my Decision on Damages. All figures are denominated in Hong Kong dollars (and all references to cents in the offered calculations have been rounded or ignored as immaterial).

5.  Before going into the detail, I would point out the following. In her various submissions – and in other correspondence sent to the Court – the Applicant has continued to complain of the way in which she feels she has been dealt with by the EDB, in particular since my Judgment and in the context of her seeking employment for the academic year 2022/23 and so her prospects for subsequent years. I do not think the Applicant’s suggestions that the EDB has disregarded my Judgment and its message are helpful in deciding the current question of damages, and, as I do not think it either fair or appropriate to do so, I have not taken those matters into account except as I make clear.

B.  Damages

B.1  Introduction

6.  In her claim to the damages to be assessed, the Applicant puts forward the claim to damages in the following heads and amounts:

(1)  general damages in the sum of $3,000,000;

(2)  loss of earnings in the sum of $1,945,942;

(3)  future loss of earnings in the sum of $10,994,432.

7.  Together with the interest as calculated by the Applicant, the claimed damages total $16,042,714.

8.  In response, Mr Hew and Ms Chan submit that an award of damages is not appropriate in this case, because the Applicant has failed to establish her right to damages on a valid cause of action in private law. Further, solely on its magnitude the claim is grossly exaggerated and not supported by medical evidence.

B.2  Whether Any Award of Damages is Appropriate

9.  The first question which arises is whether it remains open to the EDB to argue a complete lack of entitlement to any damages. This is because, at the substantive hearing leading to my Judgment, an argument already took place as to whether any relief should be granted (if grounds for review were made out).

10.  The scope of that argument is reflected in my Judgment. Whilst Ms Chan did argue against the grant of the claimed relief in the form of an order quashing the Decision, she did not raise any argument suggesting that there could never be an award of damages as was claimed in this case. However, the arguments raised now surely could have (and at least strongly arguably should have) been raised then.

11.  They were not, and the orders I made in my Judgment included an order that the Applicant was entitled to damages, the quantum of which I would later assess on paper submissions. I did not adjourn to another occasion the argument as to whether or not there was any entitlement to damages at all (and indeed, if there is no possible entitlement, any question of quantum would be irrelevant and the exercise of assessing quantum would be pointless).

12.  Whilst I have some doubt on whether as a matter of procedural fairness Ms Chan (later Mr Hew and Ms Chan) should be now allowed to argue that the Applicant has no entitlement to damages at all, I also bear in mind that the Court should not find an applicant’s claim established simply because her opponent has failed to raise any objection at the substantive hearing.

13.  Mr Hew’s and Ms Chan’s argument will be discussed below, and I will seek to attribute the relevant submissions to each of them (though I also assume Mr Hew has adopted those submissions previously put forward by Ms Chan alone).

14.  Ms Chan accepts that the power of the Court to grant relief in its supervisory jurisdiction is wide. The Court may make an award of damages in a judicial review application: see RHC Order 53 rules 1(3) and 7, and section 21K(4) of the High Court Ordinance Cap 4 (“HCO”).

15.  Order 53 rule 1(3) provides that an application for judicial review may include an application for an award of damages, restitution or the recovery of a sum due but may not seek such remedies alone and rule 7(1) provides that damages may be awarded to the judicial review applicant if he can satisfy the matters which, in effect, come from section 21K(4) of the HCO. Section 21K(4) in turn provides that:

On an application for judicial review of the Court of First Instance may award damages to the applicant if –

(a) he has joined with his application a claim for damages arising from any matter to which the application relates; and

(b) the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages.

16.  Ms Chan acknowledges that it is not uncommon for public law courts to award damages to successful applicants based on trespass to person in habeas corpus cases. However, there is no general right for an applicant to claim compensation for having suffered loss and damage as a consequence of any unlawful administrative decision. The Court’s discretion to make an award of damages should only be exercised if the individual applicant can satisfy the Court that she has a right to a private law claim which would entitle him or her to damages: see Tong Tim Nui v Hong Kong Housing Authority (unreported, CACV 27/1999 and others consolidated, 27 September 1999, Court of Appeal) at p 29.

17.  Ms Chan also refers to R (on the application of Fayad) v Secretary of State for the Home Department [2018] EWCA Civ 54, where Singh LJ explained that the provisions in Order 53 are procedural devices to ensure that the Court has sufficient flexibility to consider a claim for damages in the same set of court proceedings in which it is considering public law remedies such as a quashing order. At §§45-48, he made the following points (in my summary of them):

(1)  The ability of the Court to award damages in claims for judicial review is an important part of its remedial powers in order to do full justice in cases in which a public authority has acted unlawfully.

(2)  The rules and statute make clear that a claim for damages could be included in judicial review proceedings.

(3)  But the provisions governing the procedure for making a claim for damages are not substantive law.

(4)  Though ensuring sufficient flexibility, the procedural provisions do not say anything about substantive law, and in particular do not create a cause of action for damages when none would otherwise exist.

(5)  In order to know whether there is a proper cause of action for damages in a claim for judicial review, it is still necessary to go to some other source of substantive law – for example, a cause of action in negligence, trespass to goods or the person, or for breach of statutory duty.

(6)  But the fact that such a cause of action can in principle arise (as a matter of procedure) in a claim for judicial review should not mean that the usual principles for making such a claim do not apply.

(7)  Any such claim should be properly pleaded and particularised.

18.  Ms Chan points out that, although the Court found that the Policy, if it existed, had been overly rigidly applied in arriving at the Decision and has made a quashing order, that finding cannot create a new cause of action for the Applicant to make a claim for damages in substantive law. She also puts it another way, namely that it does not follow that the Secretary/EDB should assume liability to damages, because the law recognises no right of compensation for ‘administrative tort’, meaning a breach of duty owed by public body only in public law.

19.  Ms Chan also makes the point, albeit only in a footnote, that the Applicant did not include a statement of claim for damages in her leave application in breach of Order 53 rule 7(1)(a). She submits that by virtue of rule 7(2), such statement as a pleading which must contain the necessary particulars of claim as required by Order 18 rule 12 – and that the contents of the Applicant’s affirmation evidence cannot be regarded as a statement for the purposes of rule 7(1)(a), which in any event did not plead the cause of action for a relief of damages nor provide sufficient particulars of claim.

20.  Ms Chan submits in summary that:

(1)  the law does not provide a legal fiction for a job applicant to make a contractual claim;

(2)  it cannot be acknowledged in common law that by making the Decision, even though it was found to be flawed in the public law sense, the Secretary/EDB had committed a tortious wrong to a job applicant;

(3)  the Applicant did not run a case on breach of statutory duty (and there was no statutory duty owed in the recruitment of NETs for GPSs);

(4)  the Applicant apparently makes the claim on the doctrine of defamation or disability discrimination, but that is inapplicable to this case.

21.  Whilst I acknowledge that it is open to a person to stand on his strict legal rights, I confess that I find the stance taken by the EDB in this context unattractive. It will be recalled that, in my Judgment, I made the following findings (amongst others):

(1)  the Applicant was qualified for the position of NET at the School, as the EDB’s inclusion of her name in the Candidate Pool put beyond doubt;

(2)  the Applicant was interviewed for that position in an open and transparent interview process;

(3)  following the result of that process, the School chose the Applicant for the NET position;

(4)  the Applicant was, to all intents and purposes, offered the position as the NET at the School – by both the EDB and the School;

(5)  the Applicant notified her desire to accept the offer of the position at the School – to both the EDB and the School;

(6)  the only remaining formalities to be completed prior to the employment had been readily completed within a few days;

(7)  though the formal employer might be the EDB, the EDB’s own documents specified that it was acting for and on behalf of the School;

(8)  yet the EDB interfered so as to disrupt and then prevent the recruitment process;

(9)  but for the actions of the EDB, which amounted to a breach of their public law duties, the Applicant would have taken up the post of NET at the School;

(10)  the particular breach was strongly arguably made by the purported application of a non-existent Policy;

(11)  but in any event, even if the Policy had existed, it was apparently known only to certain (and not all) officers of the EDB, and had not otherwise been notified or informed to those who would need to implement it or comply with it;

(12)  further, even if the Policy had existed, the EDB applied it over rigidly;

(13)  the impugned Decision was at least in part based upon suspicions, which were not properly investigated, and were improperly taken into account;

(14)  the reasons for making the Decision given to the Applicant at the time did not match the reasons subsequently identified by the EDB in its evidence;

(15)  though the Decision ought to be quashed, the practical reality was that it was no longer possible (because of the passage of time) for the Applicant to be appointed as a NET at the School for at least the academic year 2021/22.

22.  In light of those various findings, and the obvious fact that the Decision caused (at a minimum) immediate direct adverse financial consequences to the Applicant, I think most right-minded people would balk at the suggestion that the EDB could behave in this way with practical impunity.

23.  That said, I also bear in mind that this Court, being a Court of law, should resist the temptation of tailoring a claim to achieve what reasonable people would perceive as the just result. In that regard, I think that the law, as applied in the particular circumstances of this case, would echo the likely thoughts of right-minded people in society.

24.  The Applicant acted in person all along except for the very brief legal assistance she obtained in calculating the various “heads of damages”. She remained unrepresented in advancing her grounds of judicial review and relief sought. Damages were identified as one of the relief sought in her Form 86. Whilst she did not put it in such words, apparently one of her claims was breach of contract. She identified in her Form 86 the decision the subject of review as “the oppressive and unreasonable decision of a public body to rescind [her] provisional offer of appointment based on pre-determination and prejudice”. The language suggested that she believed she had some sort of contractual rights. As she put it in submission, the Applicant was invited to accept a contract (by telephone, email and in person) and she did accept it (similarly), so that it might be thought that there is a binding collateral contract even in the absence of any written contract being signed.

25.  I bear in mind that the 2 June Email by which the EDB informed the Applicant that the School intended to offer her the NET position was not a formal offer. The Applicant was reminded not to resign from her current job or make arrangements to stay in Hong Kong before she received any provisional offer.

26.  One would appreciate that, at that stage, the EDB and the Applicant came very close to the conclusion of an employment contract for the NET position in the School. Nonetheless, the negotiation process stopped short of an enforceable contract.

27.  That said, the fact that the subject of negotiation fails to mature into a contract does not prevent the Court from finding other collateral contracts to preserve the integrity of the negotiation process when the circumstances so call for it. When parties have laid down clear rules of negotiation, the Court has been prepared to enforce those rules of negotiation by a collateral contract.

28.  One landmark decision is Blackpool and Fylde Aero Club Ltd v Blackpool BC [1990] 1 WLR 1195. There, the local authority which owned and managed the local airport invited tenders from 7 parties, including the plaintiff, for the concession to operate pleasure flights from the airport. The tender document provided that “the council do not bind themselves to accept all or any part of any tender. No tender which is received after the last date and time specified shall be admitted for consideration”. The deadline specified was 12 noon on 17 March 1983.

29.  The plaintiff submitted its tender in time but the town clerk failed to empty the town hall letter box at 12 noon on 17 March 1983 when he was supposed to have done so. He only emptied the letter box the next day and that resulted in the plaintiff’s bid being initially declared late and invalid. The town clerk’s mistake was later recognized by the local authority, but the authority eventually awarded the concession to another tenderer. The plaintiff sued for breach of contract.

30.  The plaintiff argued that the local authority’s stipulation that tenders received after the deadline would not be admitted for consideration gave rise to a limited contractual obligation to consider a timely tender. This argument was accepted by the first instance judge and then upheld by the Court of Appeal. The Court of Appeal’s main judgment (given by Bingham LJ) could be summarized below:

(a)  Generally, an invitation for tender is no more than an offer to receive tenders. But such an invitation may also give rise to some contractual obligations on the part of the invitor.

(b)  Where, as there, tenders were solicited from selected parties all of them known to the invitor, and where the local authority’s invitation prescribes a clear, orderly and familiar procedure, the invitee is protected to the limited extent that if he submits a conforming tender before the deadline, his tender would be considered, not as a mere expectation but of contractual right.

(c)  It would be unacceptable if the local authority was free to depart from the rules stipulated on the tender document by, say, committing to one of the tenderers before the expiry of the deadline and before the other invitees had submitted their bids.

(d)  This would lead to an unacceptable discrepancy between the law and the commercially confident assumptions of commercial parties. Had the plaintiff inquired of the local authority whether it could rely on any timely and conforming tender being considered along with others, he felt quite sure that the answer would have been “of course”. The law would be defective if it does not give effect to that.

(e)  Contracts are not to be lightly implied and the Court must be able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for. But, in the case, there was no doubt that the parties did intend to create contractual relations to the limited extent that a timely and conforming tender would be considered.

31.  On a similar vein, in Barry v Davies [2000] 1 WLR 1962, the Court of Appeal also upheld the decision of the lower court’s finding that the rules of negotiation were capable of giving rise to a collateral contract. This decision was set in the context of an auction. Normally the auctioneer’s invitation to bid is only an invitation to treat and the offers are to be made by those submitting the bids. The contract is concluded when the auctioneer’s hammer is struck but not earlier. On the facts of the case, the auctioneer put two engine analysers up for auction on a without reserve basis but decided to withdrew the analysers from the auction when he considered the only bid received was too low. The only bidder, the plaintiff, sued the auctioneer for breach of contract. The Court of Appeal held that there was a collateral contract between the auctioneer and the highest bidder that the auctioneer would sell to the highest bidder.

32.  Mr Hew reminds of the need to look at the relevant correspondence objectively: see, for example, Stegemann RA v Chinese University of Hong Kong (unreported, HCLA 36/2002, 5 July 2002) at §11. This I have done, both in my Judgment and below. Mr Hew also emphasises that any alleged collateral contract would have to be an implied agreement inferred from the parties’ conduct, where the Applicant of the proponent of the contract bears the burden of proof, remembering that contracts are not likely to be implied and that the Court must be able to conclude that it is necessary, not merely convenient or desirable to imply such contract: see, for example, Baird Textile Holdings Ltd v Marks & Spencer plc [2001] CLC 999 at §§13, 21 and 59-64. (Mr Hew refers to a number of other authorities on this and other points, but I do not think I need make reference to all of them in this Decision,)

33.  Applying the various principles, I am of the view that there was a collateral contract between the Applicant and the EDB that the Applicant’s application to a NET position (submitted by herself to the School directly) would be considered alongside other CVs submitted via NET Amin Team:

(1)  The relevant rules of negotiation (or recruitment) were clearly conveyed to the Applicant in writing. By email dated 14 May 2021, the Applicant asked the NET Admin Team “if [she] may send [her] CV to other primary schools that are currently recruiting NETs”. By email dated 18 May 2021, the NET Admin Team replied “Under existing arrangement, schools may either entrust the EDB for NET recruitment or recruit a NET direct on their own. Therefore, you may also apply to individual schools with NET vacancy directly”.

(2)  Tailoring Bingham LJ’s hypothetical question in Blackpool to the present case: had the Applicant asked could she rely on that her CV, submitted by herself to the school directly, would be considered on the same footing as other CVs which was submitted via the NET Admin, the answer would be positive.

(3)  Objectively speaking, the EDB and the Applicant, as shown in the 14 May 2018 email and the 18 May 2018 Email, had the intention to bind themselves to the limited effect as contended for.

(4)  The EDB later sought to offer their own subjective interpretation of the 18 May Email, which is, in my view, contrary to the plain meaning of the email. In any event, as Mr Hew has himself sought to emphasise, it is trite that the point of reference for a contract is an objective bystander. The EDB’s subjective belief, even if that was a genuine one, is irrelevant.

(5)  The 18 May Email, viewed in the EDB’s general invitation for candidates in the Candidates Pool to apply for NET positions, was an offer to the Applicant to the limited extent that the Applicant’s direct submission to the School (or other schools) would be admitted into consideration. The Applicant’s direct submission to the School and the completion of the entire interview process led to an offer and the acceptance of the offer.

(6)  Indeed, the EDB’s own subsequent conduct supports that view – until, of course, the EDB acted in the way that has led to its decision being quashed.

34.  Mr Hew refers to Gilligan v AHK Air Hong Kong Ltd [1989] 2 HKC 189, at 197H, where it was recognised that much negotiation will accompany the offer of employment but whatever the circumstances, the law is interested in identifying the moment in time when a clear offer in precise terms was unconditionally accepted by the person to whom it was made. Thus the law looks to the moment when the negotiations are ended. But it seems to me on the findings I made that there was a clear offer in precise terms, which was accepted without conditions (save as to the completion of formalities which was quickly achieved).

35.  I think it clear that the finding of a collateral contract is necessary to give ‘business reality’ to the dealings between the EDB/School and the Applicant, namely to create enforceable obligations between parties who dealt with one another in circumstances in which one would expect business reality and those enforceable obligations to exist. I do not think it can be said that the parties in this case would have acted as they did without intending a contract coming into existence, and it seems unequivocal that (subject only to the completion of formalities, which were swiftly completed) the parties had the intention to create legal relations.

36.  Further, Mr Hew’s suggestion that the Applicant was not “locked” into employment or any process and was free to look for other jobs seems to me to be far from the reality. By accepting the position at the School, the Applicant effectively shut herself out from accepting a position at another school where recruitment was dealt with under the auspices of, or with the assistance of, the EDB. Evidently, she proceeded on that basis until much later in time, following the elated and varying explanations offered to her as to why she was not able to take up employment at the School.

37.  There was a collateral contract, and it was breached. The rules of negotiation or recruitment clearly conveyed to the Applicant were not complied with by the EDB. It is not disputed that the School selected the Applicant after rounds of interview and the Applicant was on the verge of being offered the position pending only the completion of certain formalities, which were in fact quickly met. The reason why the Applicant was rejected at the end was because her CV was submitted by herself to the School directly – the very channel of application which the EBD had assured the Applicant was permissible and would not rule her out from consideration.

38.  Had the Applicant been considered on the same footing as other applicants whose CVs were submitted via the NET Admin Team, the Applicant would have been offered a two-year contract. Indeed, at the invitation of the EDB, the Applicant had already indicated she did or would accept it and had fully complied with the formalities requested of her. Further, as I found in the Judgment, the EDB chose to interfere so as to prevent the formal contract coming into being apparently based on suspicions, which were not properly investigated, and which were improperly taken into account – and which in fact had no basis.

B.3  General Damages

39.  The Applicant seeks general damages for the hurt and distress suffered by her, and to repair the harm that has been done to her reputation.

40.  Her claim to the sum of $3,000,000 comes from the award of general damages in that sum in the case of Chu Siu Kuk Yuen Jessie v Apple Daily (unreported, HCA 17103/1998, 20 December 2001, Yuen J). The Applicant recognises that that was a libel case, but submits that how Yuen J quantified damages in that case is relevant to this case. In the Chu Siu Kuk Yuen Jessie case, the award of general damages was quantified as it was because of the seriousness of the libel, that the circulation of the libellous material was high, that there was long-lasting psychiatric and actual physical illness and proven loss of business profits. There was also no apology. The award was made to console the plaintiff in that case for the hurt and distress suffered by her, to repair the harm done to her reputation and to vindicate her reputation.

41.  The Applicant’s submissions refer to her own evidence – in particular §79 of her 1^st affirmation – which contains material relating to claimed damages, which might be broadly summarised as follows:

(1)  the damages awarded should seek to relieve the Applicant of the amount of emotional stress gone through since May 2021;

(2)  she experienced fear and anxiety at almost every stage of job-seeking, for fear that she would not be hired because of secret phone calls made to school principals;

(3)  after the outcome of the application, she continued to experience emotional and psychological stress, in seeking to find out how and why the Decision could be made, with the unreasonable abuse of power;

(4)  prior to the incident, she had not experienced what it was like “to be consumed with such intense emotional distress”, which also had physical manifestations;

(5)  she started to lose confidence and a sense of self-worth;

(6)  even after the Judgment, continued flashbacks to past events force negative thoughts and emotions;

(7)  though (for her own reasons) she has not consulted a psychologist or psychiatrist, she knows from her own educational background in psychology, that she is experiencing serious mental issues as a result of harm being occasioned on her “by remorseless and harmful senior EDB officers”;

(8)  she has suffered a loss of reputation and been labelled a ‘trouble-maker’.

42.  The Applicant submits that even the sum of $3,000,000 cannot fully compensate for the longer-term reactions, including but not limited to unpredictable emotions, flashbacks, physical symptoms and strained relationships.

43.  In response, Ms Chan submits that the Applicant appears to have personalised the Chu Siu Kuk Yuen Jessie libel case, but it is factually distinguishable, and there has been a failure to articulate how the factual circumstances of this case could give rise to a cause of action for damages for defamation.

44.  If reference is intended to be to the phone calls made by Mr SK Lo to the GPS principals as amounting to defamation, Ms Chan says that is mere assertion, because there was no such finding in the Judgment, nor any finding that what was allegedly said was defamatory. In so far as it is said by the Applicant that the Decision was motivated by bad faith, there is no such finding of the existence of bad faith, where “bad faith” is in any event not itself a valid cause of action in substantive law.

45.  Leaving aside the question of liability, Ms Chan submits that the Applicant has not produced any cogent evidence, medical or otherwise (outside of self-serving affirmation evidence) to prove the alleged causation for her claim of mental distress. Further, the personal reasons for not consulting a psychologist or psychiatrist cannot justify the lack of medical evidence for the purpose of assessment of damages.

46.  I agree, and on balance, I consider that an award of general damages for the claimed hurt and distress is not apt. I decline to make it.

B.4  Loss of Earnings

47.  The Applicant is seeking monetary compensation for the loss of at least a two-year service contract under the EDB NET Scheme – Remuneration Package. She says that, but for being stripped of the provisional offer at the School, there is a high probability of her having completed at least a two-year service contract supposed to be from 16 August 2021 to 15 August 2023. That would have been remunerated at $61,450 per month (based on her last Master Pay Scale Point 29) and $20,989 for housing allowance-cash per month, and the gratuity payable for the contract that would have been a sum together with the Government’s contribution to the MPF scheme that may equal 15% of the total basic salary drawn during the period of the contract.

48.  In order to mitigate her loss of earnings caused as a result of the Decision, the Applicant found a job as a school-based NET. As I recognised in the Judgment, school-based NETs are paid less. Aside from the salary for October 2021, which was $22,452, the Applicant’s monthly salary is $29,000. The current contract ended on 31 July 2022.

49.  By reference to a spreadsheet prepared by her and attached to her submission, the Applicant calculates her gross yearly income as a NET under the EDB NET Scheme as $1,114,697, and so over two years would be $2,229,394. Deducting the income she has in fact received since October 2021 (totalling $282,452), is a loss of earnings claim of $1,945,942.

50.  As to the spreadsheet, Ms Chan submits that: (1) not all NETs are eligible to fringe benefits, and the claimed housing allowance of $20,989 is such a fringe benefit, subject to a decision on eligibility through internal assessment criteria; (2) as to the contract gratuity, the payment is conditional and payable only upon satisfactory completion of the appointment contract period; and (3) the employer’s contributions to MPF Scheme during the calculation period should be deducted in the calculation of the gratuity.

51.  On the materials, I see no reason why the Applicant would not (on a good faith basis) have been found eligible for the housing allowance. Indeed, though Ms Chan has sought to ‘float’ the question of eligibility, it is unfortunate that she has not identified the relevant facts relating to whether or not the Applicant was previously eligible for and paid fringe benefits including housing allowance, travel allowance and so forth during her previous lengthy period of employment. The EDB must know the answer to that question, but has chosen not to offer it. I see no reason not to accept the Applicant’s statement that her normal place of residence outside Hong Kong has always been in Richmond, British Columbia, Canada, and that she has from 2004 until 2020 continuously received fringe benefits, including the housing allowance.

52.  Nor do I see any reason why the Applicant would not have satisfactorily completed the contract period, so entitling her to the contract gratuity. Her previous record as a NET, with the various commendations mentioned in the Judgment, speaks for itself. But I accept that the employer’s contributions to MPF of $18,000 should be deducted from the gratuity. Ms Chan made no submissions in relation to other items on the spreadsheet, being a retention incentive of 10% (of one month’s salary), insurance and passage. In those circumstances, and as those sums together total only around $12,000, I would include them. Therefore, the annual figure is $1,096,697. The two-year amount is $2,193,394.

53.  On the other hand, the duty to mitigate would also apply to the academic year 2022/23, and it turns out that the Applicant has been able to obtain employment as an EDB NET in an aided school, so that she has no loss for that year (even though she regards her position as ‘precarious’ and has suggested there has been delay in certain aspects of her remuneration.

54.  The calculation of loss of earnings arising from the deprived contract is ($1,096,697 - $282,452) $1,562,942. Assuming tax would have been payable on that income at 15%, the net amount of lost income would be $814,245.

B.5  Loss of Future Earnings

55.  The Applicant submits that, but for being wrongfully labelled as a ‘trouble-maker’, she would have been successfully awarded a contract under the EDB NET Scheme year after year until her retirement age of 65 – she being now 47 years of age.

56.  In her calculation of future loss of earnings, she has adopted the calculation used in K, Y and W v Secretary for Justice, sued for and on behalf of the Fire Services Department and Hong Kong Customs and Excise Department (unreported, DCEO 3, 4, 7/1999, 27 September 2000), which as its action number identifies was a claim for unfair discrimination, in that case made under the Disability Discrimination Ordinance. The figure adopted by the Applicant is $63,891 per month, multiplied by 12 and using a multiplier of 14.34 (with the discount rate of 2.5%). Hence her claim calculated at $10,994,432.

57.  Ms Chan submits that the K, Y and W case has no application to the present circumstances. It is not the Applicant’s pleaded case that the Decision was made because of her inherent disability in terms of the statutory definition or otherwise. On the facts, the reason for the Decision was that the Policy had not been adhered to by the School (albeit that the Court found in the Judgment that the Policy, if it existed, had been over rigidly applied).

58.  I tend to agree with that submission. But, more fundamentally, I do not think any sufficient link is drawn between my findings in the Judgment and any future loss of earnings. I bear in mind that each contract period is of one or two school academic years, and there are numerous reasons why any particular employee’s contract might be ended or not renewed at its expiry. I do not think it fair or appropriate to assume any future wrongdoing. Indeed, ordinarily in most contractual scenarios (although I have recognised that there may be a difference in the particular context giving rise to this case), an employer may lawfully choose to end employment in accordance with the terms or contract of employment and such applicable laws to be found in, for example, the Employment Ordinance Cap 57.

59.  I would not award any damages for loss of future earnings.

B.6  Other Loss

60.  Though not specifically included in the claim to damages as it was framed, I have already referred to the matter included (in my view erroneously) in the claim to costs as was dealt with in my Decision on Costs, [2022] HKCFI 2484.

61.  The extra fee of $3,130, necessarily paid by the Applicant to the HKCAAVQ for teacher registration seems to me to have arisen directly as a result of the Decision which I have quashed, and would not otherwise have been incurred.

62.  I would, therefore, allow that sum as part of the damages claim.

B.7  Interest

63.  In the exercise of my discretion, I award interest on all sums at the Judgment rate until payment. The period of interest to be calculated will commence as from 1 March 2022 (as that is a date suitably within the first contract year to cater broadly for the fact that some loss would have occurred earlier in the academic year and some later).

64.  I leave to the parties the actual calculation of that interest sum. (Though it ought not to be necessary, I can resolve any dispute as might arise on the calculation.)

C.  Conclusion on Damages

65.  I assess the damages payable to the applicant in the total sum of $817,375 with interest as detailed above.

The applicant, acting in person

Mr Yang-Wahn Hew, instructed by and Ms Jess Chan, Assistant Principal Government Counsel (Ag.) of, the Department of Justice, for the 1^st and 2^nd respondents

HCAL 1231/2021

[2022] HKCFI 2484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1231 OF 2021

________________________

________________________

________________________

DECISION ON COSTS

________________________

A.  Introduction

1.  In my Judgment dated 13 May 2022, [2022] HKCFI 1402 – the definitions in which I continue to use – I found that the Applicant had made out various and overlapping grounds for judicial review of the relevant Decision.  Further, on some points which I thought need not be determinative, I found very strong arguments in favour of the Applicant’s case.

2.  In the exercise of my discretion as to relief, I quashed the Decision, and I also ordered damages to be assessed, with costs to the Applicant also to be assessed.  I stated that the matters of assessment would be dealt with on paper submissions.  Those submissions have been filed. As to costs, they have been filed by the Applicant for herself, and by Ms Ally Shum, Government Counsel for the Secretary/EDB.

3.  My Decision on Damages will be delivered separately.  This is my Decision on Costs.

4.  All figures are denominated in Hong Kong dollars, and any references to cents in the offered calculations have been rounded or ignored as immaterial.

B.  Costs

5.  The Applicant appeared in person, without legal representation, throughout the proceedings.

6.  Order 62 rule 28A of the Rules of the High Court materially provides:

(1)  On a taxation of the costs of a litigant in person there may, subject to the provisions of this rule, be allowed such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by a solicitor on the litigant’s behalf.

(2)  The amount allowed in respect of any item shall be such sum as the taxing master thinks fit not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the taxing master would have been allowed in respect of that item if the litigant had been represented by a solicitor.

(3)  Where in the opinion of the taxing master the litigant has not suffered any pecuniary loss in doing any work to which the costs relate, he shall not be allowed in respect of the time reasonably spent by him on the work more than $200 an hour.

7.  It is common ground between the parties that the most relevant provision is that in Order 62 rule 28A(3).

8.  In that regard, the relevant legal principle established – see, for example, Cheuk Shu Yin v Law Yeuk Kan (No 2) [2018] 2 HKLRD 249 at §4(2)  – is that if the litigant in person has handled the work in relation to the litigation in his or her spare time (as is the case with the Applicant), he or she has not suffered any actual pecuniary loss and hence shall not be awarded costs under the indemnity principle of the common law.  However, he or she may be allowed costs of not more than $200 per hour.  The number of hours allowed is the time a solicitor would have spent on that item, not the time the litigant in person has actually taken.

9.  Further, in determining the hourly rate, reference will be made to the degree of complexity involved, hence the requirement for more effort by the litigant in person.

10.  In her Statement of Costs for the gross sum or summary assessment, the Applicant has stated that she spent an immense amount of time and energy in learning and researching about legal materials relevant to administrative law, preparing court documents, and handling court-related matters.

11.  In the period between August 2021 and April 2022, the Applicant claims to have spent 5 hours on the case on each of 90 school working days and 16 hours on the case on each of 157 non-school working days/holidays.  This amounts to 450 hours and 2,512 hours respectively.

12.  She therefore claims for the total of 2,962 hours at the hourly rate of $200 – in the overall sum of $592,400.

13.  This is, with respect, an extraordinary number of hours, and it is no surprise that Ms Shum, has described it as excessive, without breakdown of details of time allocated and lacking in particulars.

14.  In response, the Applicant has explained that she did not provide any timesheets with details of the time allocated to particulars, as she was not aware until after the case had ended that she could claim costs of a litigant in person under Order 62 rule 28A.  But she has referred to her school calendar and her memory of the overall amount of time spent on the case.  As she put it, “[a]side from the time used on sleeping, eating, grocery shopping, travelling to and from school, and conducting teaching duties, the rest of [her] attention went to thinking about and handling the case”.  The Applicant also asserts that she has not included in her calculation of the hours spent on the case the many nights when she would be suddenly woken up by thoughts of what she should be jotting down in court documents, and that basically it was hard for her to recall a period of any long moment in which he did not think about the case in the period between mid-August 2021 and 20 April 2022 (the date of the substantive hearing).

15.  As a very general remark, that may well be true.  The Applicant presented – in both her lengthy written materials and her oral submissions – as someone fully “invested” in her complaints raised in these proceedings, and for whom her sense of injustice and the need to right the wrongs suffered might have become almost all-consuming.  But that is not the proper basis upon which to assess the relevant costs.

16.  As stated, the number of hours to be allowed on the assessment is the time a solicitor would have spent on the work, not the time the litigant in person has actually taken.  It can be noted that the entire judicial review proceedings from the date of the Form 86 on 1 September 2021 until the substantive hearing on 20 April 2022 took just 232 days (including counting all weekends and holidays).  But, the total of 2,962 hours claimed by the Applicant is equivalent to suggesting a solicitor would have worked for over 370 full working days of 8 billable hours – perhaps equivalent to more than a year and a half of the billable time expected from even the most demanding law firms.  The suggestion is utterly untenable.

17.  Nor does it assist the Applicant to say that the total dollar sum she claims is less than two-thirds of the sum which in the opinion of the taxing master would have been allowed for work done by her had she hired a solicitor.  The relevant assessment arises because the Applicant did not instruct a solicitor, but did the material work herself in time spent outside her own employment working hours.

18.  In the Respondents’ Response to the Statement of Costs, Ms Shum suggests allowing 100 hours 51 minutes for the Applicant’s time spent on the case, including but not limited to attendance with the Respondents, attendance with Court, preparation of documents, perusal of documents, legal research, preparation of hearing and attendance of hearing and consultation with solicitors.

19.  However, it is not made clear why that particular time is suggested as appropriate – with a round 100 hours, but an additional 51 minutes (itself an odd number when solicitors usually charge by reference to units of 6 minutes).

20.  I am, therefore, left to do my best to estimate an appropriately reasonable number of hours (perhaps rounded to a convenient figure)  by reference to my own understanding of the importance, difficulties and complexities of the case.  In part, that is a question of proportionality. As with any summary assessment of costs, it requires the discretionary application of a relatively broad brush.  I take into account the litigant in person’s own position, but view the matter through the lens of a solicitor who (a) is not unversed in the law, and does not need to do more than the appropriate amount of research for the particular case in the relevant field of practice, and (b) has some experience of how to marshal information and present documents and argument.

21.  On that basis, it seems to me that a reasonable and appropriate number of hours (if perhaps on the generous side)  would be 205, which is equivalent to 25 full working days of 8 hours for preparation and the short interlocutory matters, together with the 5 hours or so spent at the substantive hearing.  I agree that the complexity of the case justifies an hourly rate of $200.  Therefore, those time costs are assessed at $41,000.

22.  As to disbursements, there is no dispute that the Applicant is entitled to filing fees, photocopy and stationery costs.  The figure claimed is $3,081 (rounding up the odd cents), but I round that up further to $4,000 to take account of the mechanical aspects of putting the bundles together.

23.  There is a dispute as to the last item of disbursements claimed by the Applicant, being a legal fee for general consultation in the sum of $6,000.  The relevant solicitors’ fee note identifies that the fees were charged for general consultation in respect of the Applicant’s damages claim in this action, the consultations having occurred in May 2022.  The Applicant has explained that she decided to engage the solicitor, as she believed that a solicitor must be able to do a better job than she could of summarising the breakdown a calculation of the damages logically and reasonably.

24.  However, Ms Shum points to the Cheuk Shu Yin case, where the Court of Appeal ruled that given that the defendants in that case had been acting in person and no notification of legal representation had ever been filed, the defendants could not ask the plaintiff to pay their legal fees even if they had actually engaged a solicitor to assist in the appeal.

25.  That is correct, and I think I am bound by that approach.  But, I note that the Court of Appeal did allow the reasonable time the defendants, as litigants in person, spent on consulting their solicitors. In this case, I think it is reasonable to allow for the Applicant to have spent 6 hours consulting her solicitors in this regard, which I assess at $1,200.

26.  The last item claimed by the Applicant in her Statement of Costs is the fee of $3,130 she paid to submit her application for qualifications assessment to HKCAAVQ, which extra costs she says she would not have incurred had she not needed to apply as a school-based NET.  However, I agree with Ms Shum that this is not an item of legal costs, and it is not allowable in the claim for costs.

27.  Nevertheless, it does seem to be to be an expense which might be relevant to the Applicant’s damages claim.  So, I will address the point in that context.

C.  Conclusion on Costs

28.  The total sum of assessed costs payable by the Secretary/EDB to the Applicant is in the sum of $46,200.

29.  I order that sum to be payable forthwith.

30.  For the avoidance of doubt, I make no order on the argument as to the assessment of costs.

The applicant, acting in person

Ms Ally Shum, Government Counsel, of the Department of Justice, for the 1^st and 2^nd respondents

HCAL 1231/2021

[2022] HKCFI 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1231 OF 2021

________________________

________________________

________________________

J U D G M E N T

________________________

A.   Introduction

1.  It is sometimes asked, if a branch falls from a tree in the forest when no one is there to hear it, whether it makes a sound.  One question arising in this case is whether a government policy, which has not been recorded in any document and which has not been communicated to those who would need to implement it or to comply with it, can really be said to exist.

2.  The case arises on the following basic facts:

(1)  The Applicant is a native-speaking English teacher (“NET”), who has received many commendations for her teaching in public sector schools.

(2)  For each annual recruitment exercise for the selection and employment of NETs by public sector schools, the Education Bureau (“EDB”)  vets and maintains a pool of qualified candidates (“Candidate Pool”).

(3)  The Applicant was approved as a qualified candidate for the Candidate Pool for the academic year 2021/22.

(4)  After two rounds of candidate interviews, the Applicant was selected by a government primary school (“GPS”), namely the Fuk Wing Street Government Primary School (“School”), as its NET for the two academic years 2021/22 and 2022/23.

(5)  The Applicant was informed by EDB and by the School that she had been selected, and she indicated to both that she wished to take up the post.

(6)  The Applicant quickly furnished all further documents as were required to process the offer/contract details.

(7)  But, after 6 weeks, the Applicant was suddenly informed that no contract would be offered after all.

(8)  There is no viable basis for suggesting the Applicant had done anything wrong.

(9)  Instead, the suggestion is that the School made a ‘procedural error’ in failing to follow the EDB’s “internal policy” (“Policy”)  that candidates’ CVs can be accepted by GPSs only from the EDB (as opposed to from other referral or directly from a candidate, like the Applicant herself).

  (10)  There is no document that is said to contain, or inform anyone of, the Policy.

  (11)  The decision not to award the Applicant the indicated contract (“Decision”)  was made on 19 July 2021 at a specially convened meeting of various senior EDB personnel.

  (12)  Despite the number and seniority of personnel present, there is no contemporaneous note or minute of any kind of what transpired at the meeting.

3.  Put another way:

(1)  The EDB thought the Applicant was plainly qualified for the NET post by including her in the Candidate Pool.

(2)  Though the Applicant had herself provided her CV to the School, her CV might at any time have been – and, indeed, ultimately it was – received by the School also directly from the EDB.

(3)  The School was tasked with selecting and was permitted in its discretion to choose a NET from the Candidate Pool, whom the School thought was the best candidate for it.

(4)  The Applicant was assessed in an open and transparent two-round interview process conducted by the School.

(5)  The School selected the Applicant as the best candidate.

(6)  Nevertheless, the Decision interrupted and then prevented the appointment of the Applicant.

4.  Therefore, even assuming the Policy genuinely existed – which is in doubt, and leaving aside for the moment whether any real rationale for it has ever been satisfactorily offered – the question nevertheless arises as to what possible basis might justify the Decision.

5.  The Applicant says the Decision was – and must have been – made in breach of various principles of public law.  She criticises the Policy as being in truth non-existent, alternatively overly rigid or overly rigidly applied.  She alleges bad faith, in effect that it had been pre-determined that she would not get a NET post.  In her Form 86, the Applicant identified “the oppressive and unreasonable decision of a public body to rescind [her] provisional offer of appointment based on pre-determination and prejudice”.

6.  The Secretary for Education (“Secretary”)  and the EDB say that there has been no such breach, and in any event the primary submission is that the Decision was as regards a private employment matter and was not a decision even amenable to judicial review.  The allegations of bad faith are firmly denied.

7.  I originally gave a direction for a ‘rolled-up’ hearing.  But, in light of the procedural history which I shall set out below, I instead gave leave to apply for judicial review at a hearing on 8 February 2022. I also fixed the substantive hearing of the application for judicial review for 20 April 2022.

8.  At that hearing (as throughout), the Applicant appeared in person.  The Secretary and the EDB were represented by Ms Jess Chan, Assistant Principal Government Counsel (Acting).  At the end of the hearing, I reserved decision.

9.  This is my Judgment.

B.  Procedural History

10.  On 1 September 2021, the Applicant filed her Form 86 and a supporting affirmation.  From her supporting affirmation, it appeared that she was unemployed.  Therefore, on 4 October 2021, on the then materials and with a view to expediting the matter, I ordered a rolled-up hearing with half a day reserved, and gave consequent directions. The rolled-up hearing was subsequently fixed for 2.30pm on 8 February 2022.

11.  The initial evidence filed by the EDB was from Mr Lam Man Kwong, Chief Professional Development Officer (Teacher Administration)  (“Mr Lam”).  Following that, the Applicant issued a summons dated 11 January 2022 with a return date of 27 January 2022, seeking an order to request certain persons to give evidence by way of filing affidavits or by attending the rolled-up hearing to be cross-examined by the Applicant.  Part of her case is in relation to what she says is the true reason behind the Decision, namely to stop her from working in government schools, perhaps because she was seen as a trouble-maker when she served as a teacher representative on a previous School Management Committee (“SMC”).  Those named by her were the persons the Applicant believes would know about the circumstances and the real reason behind the Decision.

12.  The Applicant acts in person and the summons was not properly taken out.  The EDB suggested I should adjourn the summons to be dealt with at the rolled-up hearing already fixed.  But, on 14 January 2021, I directed that the Court was prepared to accept the summons as an application seeking leave to issue writs of subpoena against the persons named in the supporting affidavit, and that the hearing of the Summons was to proceed on the date given, on an ex parte basis.

13.  The Applicant attended the hearing on 27 January 2022 in person.  Her main submission was that she believed those persons named by her would tell the truth in Court and their evidence would prove her case as to the real reason behind the Decision.  She expressed a strong conviction that the truth would come out if those persons were required to given evidence.

14.  In a reserved decision, I pointed out the rarity in making an order directing oral evidence, or the filing of further evidence, or the provision of further disclosure, prior to the grant of leave to apply for judicial review.  However, the practical problem arose in a rolled-up hearing that, between dealing with the application for leave to appeal and (if leave is granted)  the substantive application, there is no gap within which to address potential further evidence.  There was also little time before the fixed date of 8 February 2022.

15.  I bore in mind that some of the evidence being sought by the Applicant might perhaps be revealed by the EDB in advance of the substantive hearing, in one form or another, if leave to apply for judicial review were granted.  I noted that, by that stage, the EDB would be operating under the usual duty of candour to make full and fair disclosure of all relevant materials.  Prior to that, at the leave stage, if there is any factual dispute, the Court would likely assume disputed facts in the Applicant’s favour, unless what she said was without basis or wholly unbelievable.  If leave were to be granted, consideration could then be given to any further directions as to disclosure or further evidence, if appropriate.  That would leave the Applicant to decide if she wished to take the summons any further, and if so, how.

16.  Therefore, I revisited my previous case management direction as to a rolled-up hearing, so as to split the two potential stages.  Also, to cater for the possibility of the need for a reasonably expeditious substantive hearing, if leave were to be granted to apply for judicial review, I fixed a provisional date for the substantive hearing.

17.  At the hearing on 8 February 2022, after argument, I granted the Applicant leave to apply for judicial review.  I also fixed the substantive hearing for 20 April 2022 (with 1 day reserved)  and directed both Applicant and the Secretary for Education to file further evidence.

18.  On 15 March 2022, the EDB filed 6 affirmations/affidavits. The evidence came from Mr Lam, who had previously filed the first affirmation, as well as other evidence from members of the NET Administration Team (“NET Admin Team”), the Government Schools Section (“GSS”)  and the Sham Shui Po School Development Section (“SSPSDS”).

19.  On 22 March 2022, the Applicant filed a lengthy affidavit in reply to that evidence.

20.  On 4 April 2022, the Court received a letter from the Applicant renewing her requests to issue writs of subpoena to summons some persons as her own witnesses and – in effect – for leave to cross-examine some of the EDB’s witnesses at the substantive hearing.  The request had also been made her affidavit dated 22 March 2022.

21.  The 4 prospective witnesses whom the Applicant sought to subpoena were (1) Ms Wong Chui Han Ellen, the Principal of the School (“Principal Wong”); (2) Mr Lee Ka Chun, an English Panel Co-ordinator of the School (“Mr Lee”); (3) Ms Lau Yuk Lin Karen, Chief School Development Officer (SSP)  of the EDB, and (4) Ms Cheng Wai Fun, Senior Education Officer (GSS)  of the EDB.

22.  The 4 witnesses of the EDB who she sought to be made available for cross-examination on their affidavits/affirmations filed were: (1) Ms Ho Wai Shan Sandy, Education Officer (GS)2 (“Ms Ho”); (2) Mr Lo Sai Kuen, Assistant Education Officer (Administration)2 (“Mr SK Lo”); (3) Ms Chan Wai Ling, Administrative Executive (TAdmin)  (“Ms Winnie Chan”); and (4) Ms Tse Pik Sze Rita, Senior Professional Development Officer (TAdmin)2 (“Ms Tse”).

23.  Applying the settled test, namely whether cross-examination is necessary for disposing of the critical issues in the judicial review fairly and justly, I took the view that test was not satisfied.  Whilst the Applicant said the EDB had failed to provide full and fair disclosure of all relevant information or materials by the second round of affidavit evidence, it then seemed fairer to say that the position was that the Applicant disagreed with the factual accounts offered by the EDB in the affidavit evidence and set out to prove the deponents wrong by way of live evidence.

24.  Having considered the materials then available, I did not consider it necessary to order live evidence in the substantive hearing (either by subpoenaing prospective witnesses or making the EDB’s witnesses available for cross-examination).  I also took note that both Principal Wong and Mr Lee of the School had apparently declined to file affirmation evidence on the Applicant’s behalf.

25.  I also refused to reconsider my decision as the Applicant subsequently invited.

26.  However, on 13 April 2022, the Applicant served an affirmation of that date from Principal Wong and sought permission to use it at the hearing.  The EDB objected, but I said I would deal with the application at the hearing – though I read the materials de bene esse. After argument on that point at the hearing, I allowed the Applicant to use the affirmation of Principal Wong, for reasons which I said I would include in this Judgment.

27.  In short, my reasons leading to the exercise of discretion to allow the evidence were that: (1) there is no property in a witness; (2) it was open to the EDB to have deployed evidence from Principal Wong; (3) the EDB had had the chance to put in whatever evidence it thought necessary properly to explain the position and to meet the clear allegations already made by the Applicant; (4) what Principal Wong might have said about the recruitment exercise might be relevant to the present consideration; (5) indeed, what she might say was perhaps central to the circumstances of the ‘procedural breach’ of the Policy which is said to underpin the Decision; (6) what Principal Wong might say was put in issue by the Applicant well before the EDB filed its second round of evidence; (7) on its face, the Principal Wong affirmation was filed in part to correct what she thought was incorrect, misleading or incomplete in the EDB's evidence; (8) the contents of her affirmation, supported by its exhibits, seemed credible against the other evidence already filed: (9) it also provided more documents, which at least arguably ought to have been disclosed beforehand by the EDB and which might put a different gloss on certain events and prior statements; so that (10) it seemed fair and appropriate for the evidence to be admitted.

28.  However, I made clear that the affirmation was to be admitted without prejudice to the comments as might be made to the weight to be given to any part of the evidence.  In particular, I noted Miss Chan’s submission that some of the evidence related to Principal Wong’s dealings with a Ms Hui, who was not already a deponent for the EDB, and so could not be thought already to have told her version of matters.

29.  One last procedural point can be mentioned.  Since the conclusion of the hearing, the Applicant has sent various communications to the Court.  Though I have read them, and have noted that they seek to make some capital out of apparently ongoing communications between the Applicant and various officers of the EDB, I have not taken them into any account in my consideration of this Judgment.  Writing to the Court in this manner, particularly after the conclusion of the substantive hearing of the application, is inappropriate.

C.  The NET Scheme

C.1  Background of the Scheme

30.  The EDB has been running a scheme known as the Native-speaking English Teacher Scheme (“NET Scheme”)  in public sector primary schools in Hong Kong since the 2002/03 school year.  Native-speaking English teachers are to be employed on a two-year contract basis to improve the English proficiency of students in public sector primary schools.  Contracts could be renewed at the end of the contractual term.

31.  The NET Scheme was first implemented in public sector secondary schools in the 1998/99 year and was later expanded to public sector primary schools in 2002/03.  The scheme was first announced by the Chief Executive in a Policy Address in 1997 as part of the education policy.  NETs are required to support the teaching of English as a second language and to assist in teacher development and curriculum development at school level. Since the NET Scheme is part of Hong Kong’s education policy, as one would expect, the required qualifications of NETs, recruitment procedures, recruitment progress, teaching duties, remuneration packages, and financial implications on the government budget were a frequent subject of scrutiny within the Legislative council (“LegCo”).  The information is available in the public domain on the LegCo website.

32.  Public sector schools include both GPSs and aided schools.  No distinctions were drawn between NETs to be employed in different types of public sector schools in terms of their roles in the schools or their remuneration packages in the Policy Address or the LegCo discussions. This is perhaps unsurprising as the NET Scheme is obviously meant to cover all public sector schools.

33.  As will be seen below, EDB places significant emphasis in this case on the fact that NETs working in a GPS are employed by the Government directly as government employees while, strictly speaking, the NETs working in aided schools are employed by the relevant school.

34.  The difference arises because Government schools are operated by the EDB; the sponsoring body of all Government schools is the EDB.  The recruitment of NETs is, as the EDB puts it, governed by internal procedures and practices of the EDB who make hiring decisions as the employer.  It is pointed out that GPSs are exempted from the application of the Education Ordinance Cap 279 (“EO”).

35.  On the other hand, sponsoring bodies for aided schools are non-government organizations.  The EDB maintains control/supervision over aided schools mostly through the EO.  The operation of aided schools, including the hiring of teachers, is subject to detailed regulations provided by the EO and its subsidiary legislations.

36.  But, of course, ultimately, the salary of all NETs come from the public coffers no matter whether they are working in GPSs or aided schools.

37.  It appears that, on top of the NETs employed under the NET Scheme, schools would also employ native-speaking English teachers outside the Scheme.  Those hired strictly under the Scheme are commonly referred to as “EDB NETs”; and those outside the Scheme, “school-based NETs”.  The former seems to enjoy much better remuneration packages and to assume more duties than the latter.  The applicant has found alternative employment as a school-based NET since October 2021.

C.2  Routes for Receiving CVs

38.  The ‘procedural error’ said to have been committed by the School is that it received the Applicant’s CV from the ‘wrong route’.

39.  For the present purposes, the route by which a school could receive CVs may broadly be divided into two types: (1) from the EDB or (2) from other sources.

40.  Within the EDB, it is the NET Admin Team which is responsible for sending CVs to schools.  The NET Admin Team will conduct an annual recruitment exercise to build up a pool of qualified candidates – for the Candidate Pool – for the selection and employment of NETs by public sector schools.  The NET Admin Team will take charge of vetting to ensure that all candidates meet the eligibility criteria.  To be included in the Candidate Pool, applicants also have to pass a written test and an interview coordinated by the NET Admin Team, on top of meeting all the eligibility criteria.

41.  If a public sector school so requires, the NET Admin Team will send the school of a batch of 20 CVs randomly drawn from the Candidate Pool.  Apparently, the random draw of candidates from the pool is by candidate number, and it is only when the CVs are then copied or printed for collection by the relevant school that the EDB will know which named candidates have been drawn.  In case a school cannot find a suitable NET from the batch, or for any other reason wishes to look at a wider number of candidates, another batch of 20 randomly drawn CVs will continue to be provided.  There is no limit on how many batches of CVs a school might request or with which a school can be provided.

42.  In her submissions, Ms Chan has stressed that the EDB devotes time and resources to building up the Candidate Pool so as to save the schools from having to go through this preliminary process.  I accept that, and of course it is to identify those persons amongst any of whom the EDB thinks a school can find a suitable candidate for its own selection. But, though it potentially saves some time for the schools, it is indeed the preliminary process, and it is of course still open to the schools to deploy such resources as they think apt to the recruitment exercise and therefore to consider the school’s own choice of a smaller or wider sample of those NETs who might be described as ‘pre-approved’ by the EDB.  The EDB does not just choose a person from the Candidate Pool and foist that person on a school.

43.  As for other routes of obtaining CVs, these may include direct submissions from a prospective NET or referrals by other people, perhaps the most obvious being from any departing NET (who might be expected to know other NETs and the needs of the school).  Obviously, irrespective of the route by which a school comes to know of a candidate, the candidate still has to meet all the eligibility criteria for NETs imposed by the Government for him/her to be employed.

44.  After a school has collected CVs of NET candidates, it will then take the lead to arrange further interviews/selection process if appropriate.  After the school has selected a candidate, the school will then inform the NET Admin Team.  The NET Admin Team will then prepare a provisional offer for the selected NET upon qualification verification and salary assessment.

45.  In the present case, the Applicant had worked as a NET from 2004 to 2020.  Her contract was not renewed towards the end of the 2019/20 school year, despite her apparent high standards resulting in commendations.  But – after a ‘year off’ – her name was included in the Candidate Pool for the 2021/22 school year.  As said, her CV was indeed distributed by the NET Admin Team to the School, but at a time after the School had already interviewed the Applicant.  This meant the School had received and considered CVs other than those distributed by the NET Admin Team.

46.  The EDB says the Policy – namely that GPSs, unlike aided schools, are not allowed to receive CVs other than directly from the NET Admin Team – is a long and established procedure/practice.  The Applicant, who has worked as an EDB NET for 17 years, says the Policy is unheard of and is in any event overly rigid.  As will be seen, the evidence also suggests that many others, even school principals, were unaware of such a Policy.

C.3  NET recruiting procedures in aided schools in 2020/21

47.  Whilst it is the recruitment procedures in GPSs that is under scrutiny in this case, it is apt to start with that in aided schools since it is apparently much better documented – meaning that it is actually documented.

48.  The appointment and re-appointment of NETs in aided primary schools is governed by the Education Bureau Circular Memorandum No. 36/2021 (“Memo 36/2021”)  dated 31 March 2021. The EDB says that this memo was only applicable to aided schools, although it was indeed sent to GPSs as well.  In the header of the memo, the recipients are “Supervisors/Heads of all aided primary schools and special schools with a primary section”.  But it is stated at the end of the memo that it is copied to “Supervisors/Heads of all private primary schools/DSS schools, and Heads of Sections/Government primary schools – for information”.

49.  As will be seen below, the applicability of this memo has at least caused some confusion.  Where a GPS has received Memo 36/2021 “for information”, and where it has not been given any further information which might be thought more obviously directed at a GPS, it is no surprise if a GPS thinks the information given is that it can also follow Memo 36/2021.

50.  Memo 36/2021 is 5 pages long accompanied by a 2-page appendix and three empty forms (“Form A”, “Form B” and “Form C”).  It may be worthwhile to summarize the memo briefly:

(1)  §1 requires schools to draw the memo to the attention of all serving NETs in their schools.

(2)  §2 urges schools to discuss arrangement with serving NETs whose two-year contracts are coming to an end in 2021 to facilitate the EBD’s planning and recruitment for the upcoming school year.  Schools are required to return Form A in which they would indicate whether they would renew their contract with the serving NET and if not, whether they would entrust EDB to recruit one NET or they would recruit one NET directly.

(3)  Then, at §4, it states that:

Schools may opt to recruit new NETs directly on their own or entrust the EDB with the recruitment of NETs on their behalf.

….

Schools recruiting NETs directly are requested to return the completed Form C on “Personal Particulars of NETs Recruited Directly by Schools” to the EDB…

(4)  §§4-7 draw schools’ attention to the newly implemented “all graduate teaching force policy” in public sector schools which would also impact appointments of NETs under the NET Scheme; the need to comply with the applicable ordinances, regulations as well as the guidelines and circulars issued by the EDB; the need for NETs to produce a Certificate of No Criminal Conviction or its equivalent; and to request prospective NET to undergo a Sexual Conviction Record Check with the police.

(5)  §§7-8 explain the policy of providing NETs for every public sector primary school operating with six classes or more.

(6)  §§9-11 draw attention to some aspects of the remuneration package of NETs, e.g. payment of retention incentive, fringe benefits and contract gratuity.

(7)  §12 is intended for serving NETs who wish to change to another school upon completion of the current contract.  They are requested to return Form B in which they have to indicate if they would prefer EDB to distribute theirs CVs to primary schools and/or to have a list of schools with NET vacancies.

(8)  §§13-17 covers the duties of NETs, the terms and conditions of service, the need to obtain an employment visa and to be registered either as a registered teacher or a permitted teacher under section 42 of the EO before they assume duties.

51.  Appendix of Memo 36/21 is headed “Qualifications for Appointment of Native-speaking English Teacher (NET)  under the NET Scheme in Primary Schools”.  It sets out different categories of qualifications and their respective appointment ranks.

52.  Form B also requires the serving NET to declare the understanding that “whether [he or she is] offered an appointment is at the full discretion of schools” even though the NET Admin Team will distribute his or her CV upon request.

C.4  Recruitment process in GPSs

53.  The only document produced by the EDB to evidence the recruitment procedures in GPSs is a memo dated 2 March 2021 (“March Memo”)  in the format of an internal memo with restricted access.  The March Memo was distributed to a list of 12 GPSs where the contracts with NETs were due to expire at the end of the 2020/21 school year.

54.  The March Memo is short.  The body of the memo is only one-page long, with two appendices: Appendix A and Appendix B. Schools are asked to discuss with their serving NETs concerning further employment after the current contract expires.  Schools are asked to return Appendix A to indicate if they would renew their contracts with the serving NET.  On its face, that seems a matter entirely up to the school.  Appendix B is to be filled in by the NETs who will not renew their contract with the current school.  Making no express distinction between a GPS and any other primary school, the Appendix permits the NET to tick either or both of the following boxes under section (A):

§  I would like EDB to send my personal particulars and curriculum vitae to primary schools in need of a NET in the 2020/21 school year.  I understand that the schools may contact me directly to arrange job interviews (to paragraph 2 below)

§  I would like to have a list of primary schools with NET vacancies to be sent to my email address as stated below.

55.  Permitting the NET to tick both boxes might fairly be read as permitting both routes of bring oneself to the attention of a school.  At the end of Appendix B, the leaving NET from a government school also has to declare that:

4.  I fully understand that (a) EDB does not guarantee an appointment for me; (b) whether I am offered appointment is at the full discretion of the schools granting me interviews; and (c) regardless of whether or not I obtain an appointment at another school, I would NOT be able to return to my original school.

56.  That §4 also seems to state clearly that a school is expected to conduct its own selection process and is the actual decision-maker in the recruiting process.  It is pertinent to note at this point that this is in stark contrast to what was said by Mr Lam in his second affirmation, where he said that government schools basically play a passive and supporting role in the process to facilitate the EDB, as employer, to identify suitable candidates for employment in the government school system.

57.  Unlike the Memo 36/2021, the March Memo does not ask schools to indicate if they would require CV distribution from the NET Admin Team and/or they would recruit a NET directly by themselves.  There is no information on how they may recruit a new NET. Though Mr Lam describes the March Memo as triggering the provision of CVs in batches, and that there is no need for any detailed guidelines to inform government schools of the whole NET recruitment procedures, the simple fact is that there are no such guidelines giving that information to government schools.

58.  Besides the information regarding how GPSs may recruit a new NET, the March Memo also lacks a lot of other information which is provided in Memo 36/2021, including latest policy change, legal and other requirements imposed by the EDB, the need to obtain employment and registration under the EO, remuneration packages, etc.

59.  As already stated, there is no document which actually sets out the Policy.  It has also not been explained how the Policy was communicated to anyone.

D.   Applicant’s Recruitment Process

60.  The Applicant has taught in primary schools in Hong Kong since 2004 until her contract was not renewed towards the end of the 2019/20 school year.  She spent the last 10 years in the same school, Tai Po Government Primary School (“TPGPS”).  She appears to be a devoted teacher and was voted for the “Teacher’s Commendation Award” for three consecutive years from 2018 to 2020.

61.  She was also active in participating in school management.  During her time at TPGPS, she served as one of the two teacher representatives in that school’s SMC.  The SMC was headed by a Mr Benjamin Yung, the Principal Assistant Secretary of EDB.  On the Applicant’s account, there was bad blood between the Applicant and Mr Yung and the Applicant was considered by the EDB to be a trouble-maker.  From the emails exhibited, apparently the Applicant had written to numerous authorities, including the Chief Executive, to complain about her experience in the SMC.  When her contract was not renewed in 2020, she also complained by emails to both the Secretary and the Chief Executive. Some emails are strongly worded.

62.  Following the non-renewal of her contract at the end of the 2019/20 school year, the Applicant took a ‘year off’.  The Applicant applied to re-join the Candidate Pool for the 2021/22 school year and was notified in April 2021 that her profile had been reinstated in the Candidate Pool.

63.  However, the Applicant believes that she was picked on/targeted by the EDB.  She says that, in early May 2021, she received hearsay information that senior EDB officials connived to prevent her from being employed again in government schools.  There was a plan for a Ms Ho from the GSS of the EDB to ask her subordinate, a Mr Lo, also from GSS, to make calls to principals of GPSs asking them to “pay attention to two NETs”, naming the Applicant and a “Michael”.  In her affidavit evidence, she does not say that she heard those alleged calls had indeed happened.  All she was told was that there was a plan to do so.

64.  It was her “educated guess” that senior officials at the relevant sections of EDB had known beforehand about those calls.  She also says that it means her information had already been passed from NET Admin Team to the GSS for a bad purpose.  She filed a data access request to the NET Admin Team for the names of the schools and personnel in EDB/Government who had received her personal data.  In late May 2021, she was given the names of schools but not personnel in the EDB/Government.

65.  On 14 May 2021, the Applicant emailed Ms Winnie Chan of the NET Admin Team to ask if she could send CVs to schools by herself. The email reads:

I would like to request the names of primary schools to which my CV was/will be sent.  Please also let me know if I may send my CV to other primary schools that are currently recruiting NETs.  Thank you for your attention.

66.  This email was replied to by Ms Yvette Lo of the NET Admin Team on 18 May 2021 (“18 May Email”).  Part of the email reads:

Under existing arrangement, schools may either entrust the EDB for NET recruitment or recruit a NET direct on their own.  Therefore, you may also apply to individual schools with NET vacancy directly.  Please enquire directly on whether the post advertised is under the EDB NET Scheme. If it is, the remuneration package would be the same.

67.  In her evidence filed for these proceedings, Ms Lo says the 18 May Email was sent as it was because she had in mind that, when referring to other primary schools that are currently recruiting NETs, the Applicant meant primary schools other than government schools.  Ms Lo also says that had the Applicant been more specific in making her inquiry, namely to ask if she could send her CV directly to government schools, Ms Lo would have replied that her CV had already been included in the Candidate Pool, so she would have a chance of being considered by government schools provided under the established recruitment procedure, and there was “no need for her to duplicate efforts by sending her CV directly to government schools”.

68.  In passing, I would point out that even if the Applicant had been told by Ms Lo that there was “no need for her to duplicate efforts”, that does not sound to me like being told either that she must not send her CV directly to government schools, or that government schools were not permitted even to consider a CV of someone in the Candidate Pool if the CV was received directly from the person instead of from the EDB.

69.  In any event, the Applicant – in my view, perfectly understandably, when no distinction had been made in the 18 May Email – thought she had been told she could apply directly to schools, including government schools.  So, I do not think Ms Chan’s submission that the Applicant has “twisted” the 18 May Email is fair, and I reject the further suggestion made by Ms Chan (but not actually stated in the EDB’s evidence)  that the Applicant did not make an honest inquiry.

70.  The Applicant then sent her CV to some primary schools, including the School.  She was invited by the School to two rounds of interviews, on 24 and 27 May 2021 respectively.  On 31 May 2021, she was informed by phone by Mr Lee, the head of the English Panel of the School, that she was selected and asked if she would like to accept the post.  The Applicant said yes.

71.  On 2 June 2021, the NET Admin Team emailed the Applicant as follows (“2 June Email”):

I would like to inform you that [the School], a government primary school, has indicated intention to offer you the NET position under the NET Scheme in Primary Schools.

If you would like to serve at this school, please reply to this email on or before 4 June 2021.  If we DO NOT hear from you by the date mentioned, we will assume that you are not interested in the position offered by the school.

Upon receiving your confirmation of your intention to serve in the school, we will conduct final qualification verification and initial salary assessment based on the documents in relation to your academic qualifications and teaching experiences you have provided.  If we require further documents from you, we will inform you by e-mail.  A provisional offer will then be prepared on behalf of the school for your further consideration.

*Please DO NOT resign from your current job or make any arrangements for your stay in Hong Kong before you receive any provisional offer prepared by us on behalf of the school.

72.  Whilst it is not a formal offer, and despite the asterisked paragraph, the 2 June Email does give the impression that an offer will be given subject only to the completion of formalities, i.e. qualification assessment and salary assessment.  This seems to tally with the Memo 36/2021 and the March Memo that appointment is at the “full discretion” of the school.  Indeed, it was stated in the 2 June Email that it was the school’s (not the EDB’s)  intention to offer her the post, and emphasised twice that the provisional offer would be prepared “on behalf of the school”.

73.  The Applicant replied positively on the same day.  From 2 to 7 June 2021, there were email exchanges between the Applicant and the NET Admin Team regarding qualification verification and salary assessment.  The Applicant also met with Ms Winnie Chan of the NET Admin Team in person for verification of her documents.  There was no sign that anything was going off-track to the provisional offer. Rather, it seemed that all necessary information or confirmations had been provided (and no one suggests otherwise).

74.  However, the provisional offer did not come as expected.  The Applicant chased after Ms Lo of the NET Admin Team by phone and by emails from late June to mid-July.  On 20 July 2021, Ms Lo called and said that the Applicant’s status had changed and she would not be given a provisional offer.  No reason was given and the Applicant was asked to contact the School for details.

75.  As advised to do by Ms Lo, the Applicant called the School on 21 July 2021.  She was informed by Mr Lee that there had been a “procedural error”, though he did not seem to know what the error was.

76.  In the weeks that followed, the Applicant emailed the NET Admin Team, different sections within EDB, the Secretary and the Chief Executive to complain about the incident – all to no avail.

77.  As already stated, the Decision was apparently made in a specially convened meeting on 19 July 2021. It was attended by staff of three sections of the EDB, being the NET Admin Team, GSS and the SSPSDS.  Mr Lam has claimed responsibility as the decision-maker.  Nevertheless, it was the School and Principal Wong who seem to have been tasked with giving a substantive reply to the Applicant.

78.  By email dated 29 July 2021, Principal Wong said to the Applicant (in part)  that:

I am terribly sorry that we have misread [Memo 36/2021] which are applicable to aided primary schools but not government schools.  Having clarified with the relevant sections of the Bureau, we got to know that government schools are not allowed to recruit NETs directly.  As a government school, we have to inform the Bureau about our need to recruit a NET and strictly follow the prevailing recruitment procedures to collect the curriculum vitae of potential NET candidates solely from the NET Administration Team which would help draw the NET candidates in the EDB central candidate pool for our subsequent handling of the selection interview(s).

I know it has taken long for us to get to this letter. Please accept my apology for your unpleasant experience.

79.  By an email dated 6 August 2021, Principal Wong repeated what she said earlier but added:

In general, NETs in the EDB’s central candidate pool may apply for NET posts to schools with a NET vacancy directly.  However, having said that, as a government school, we should follow the prevailing recruitment procedures and not accept or consider the curriculum vitae submitted directly by individual applicants or referred by school staff.

80.  By email dated 16 August 2021, Principal Wong also stated that:

After consulting relevant sections, I would like to clarify that [Memo 36/2021 and related circular letters] are addressed to aided primary schools and special schools with a primary section only….  In fact, [Memo 36/2021] has only been sent to government primary schools, including my school, for information.

81.  In the same email, she also went on to suggest why the Applicant could not rely on Ms Lo’s 18 May Email in insisting that schools are free to receive CVs from applicants directly.  Principal Wong said:

According to the NET Administration Team, as the NETs who are in EDB’s central candidate pool are not guaranteed any appointment, they are free to apply directly to individual schools, including private schools, international schools, kindergarten etc., with NET vacancies which are not under the EDB NET Scheme.  Since the remuneration package of school-based NET positions offered by individual schools may be different from the NET positions under the EDB NET Scheme, the purpose of the above paragraph is to remind NETs to enquire the school directly about the details of NET posts, including the remuneration package, when they look for an employment on their own to avoid misunderstanding.  It should not be read out of context and should in no circumstances be extracted and misinterpreted as a consent that all schools in Hong King [sic] could freely choose to entrust the EDB for NET recruitment or recruit a NET direct on their own.  Although NETs are free to approach individual schools for seeking appointment, government schools should strictly follow the standing recruitment procedures and the above would not form an excuse for improper NET recruitment exercise performed by government schools, including my school.

82.  These emails are obviously a marked departure from the stance originally taken by the School in its communications with the EDB and in its report made to the EDB on 2 July 2021 – see below.  As will be seen below, these various later communications were drafted with significant vetting and input from the EDB.  Also, though the emails were of course sent after the Decision, the reason for the Decision given in them does not match the reasons now given for the Decision having been made: see below.

E.   The EDB’s Decision Making Process

83.  This is EDB’s account by way of affidavit evidence (with some of my comments added).  The bones of the account were set out in Mr Lam’s first affirmation, but more flesh was added in the further evidence filed by the EDB.

84.  Since the School, in reply to the March Memo, stated that it would not renew the contract with its serving NET, the NET Admin Team sent two batches of CVs to the School in May 2021.  On 31 May 2021, Mr Lee of the School called Ms Winnie Chan of the NET Admin Team to request a third batch of CVs and that the Applicant’s CV be included in it (“31 May Call”).  In her evidence, Ms Winnie Chan says that she did not reply directly to Mr Lee whether the Applicant’s CV would be distributed to the School because the usual practice that she had been following is that CVs are drawn randomly.  As such, she simply replied to Mr Lee that she would proceed to draw CVs and that the third batch of CVs would be ready in the afternoon for collection.  Ms Winnie Chan also says that it is impossible deliberately to draw a specified individual’s CV in the process, but when photocopying the 20 CVs in the third batch, she found that the Applicant’s CV was randomly drawn out, and it was included for the School’s collection.  As was put by Mr Lam, the Applicant’s CV was included in the third batch “solely by chance”.

85.  The third batch was sent to or collected by the School on 1 June 2021.  At 3pm on the same day, the NET Admin Team received a fax from the School stating that it intended to offer the NET post to the Applicant. The NET Admin Team then proceeded to issue the 2 June Email and prepared the provisional offer.

86.  It was said that, in the process of preparing the provisional offer, the Senior Professional Development Officer of the NET Admin Team, Ms Tse, found it suspicious that the School received the third batch on 1 June 2021 and completed the whole recruitment on the same day.  It was suspected that the Applicant was selected before the School received the third batch and the School asked for the third batch in order to circumvent the Policy.  The GSS and the SSPSDS were alerted to the “suspect employment process” on 15 June 2021.  The School was asked to submit a report.

87.  Principal Wong, on behalf of the School, submitted a report on 2 July 2021 (“Report”).  The Report detailed the steps in the School’s recently conducted NET recruitment process.  It appears from the Report that the School thought it was free to receive CVs from other sources and that the Memo 36/2021 was also applicable to GPSs.  The Report also shows the School had never been informed of the Policy, even verbally.  The Report at §11 states that:

According to Item 4 of the [Memo 36/2021], ‘[s]chools may opt to recruit new NETs directly on their own or entrust the EDB with the recruitment of NETs on their behalf.’  Besides being aware of such existing recruitment arrangement, the School has never been notified of any other circulars or through verbal instructions that suggest that government primary schools are expected to follow an arrangement otherwise.

88.  Also covered in the Report was the fact that, before Mr Lee made the 31 May Call, Principal Wong had already informed the GSS of EDB that it had chosen a new NET.  It was said in the Report that GSS agreed that the School could proceed with the hiring of the selected candidate “given the transparency of the recruitment board and the completion of the normal interview procedures”.

89.  Principal Wong said the recruitment process was made known to GSS but it was not specified if she mentioned that they interviewed candidates from both sources of CVs.  It was with the assurance from GSS that Mr Lee contacted the Applicant to expressed intention of the School to offer her the NET position under the NET Scheme, and made the 31 May Call to the NET Admin Team to complete the procedures.

90.  Indeed, it seems the School’s account of the 31 May Call in the Report also reveals a different version of what transpired during the call than is now relied upon by the EDB.  It seems plain that Mr Lee of the School had informed Ms Winnie Chan of the NET Admin Team in the 31 May Call that the School had already selected the Applicant and that the purpose of the call was not to request the third batch of CVs but to see how the remaining procedures could be completed.  The Report at §10 states that:

The English Panel (Coordinator)  telephoned NET Administration Section on the same day (May 31 2021).  According to the English Panel (Coordinator), in his tele-conversation with NET Administration Section, he enquired about the rest of the follow-up procedures, in terms of preparing the required documents.  It then became mutually known that the candidate was not introduced to the School through the NET Administration Section and that a 3^rd batch of CVs needed to be sent to the School with the CV of that particular candidate included. Therefore, a CV request form was sent to the School via telefacsimile on the same day (May 31,2021), and a 3^rd batch of CVs was collected by the school on June 1 2021.  And, since all the necessary interview procedures were met, in order to save time and to avoid the candidate from being offered the NET position at other schools, the English Panel (Coordinator)  returned the hiring reply slip via telefacsmile immediately on the same day upon receiving it.  (Note:  It did not dawn on the English Panel (Coordinator)  to query the importance or action of needing to include the CV of the selected candidate in a 3^rd batch of CVs to be collected by the School.)

91.  The reference to the English Panel Coordinator is a reference to Mr Lee.   In passing, I note that the paragraph as a whole, in particular with the end Note, reads as though the suggestion to request a third batch of CVs was not initiated by Mr Lee, and was not designed by him to cover up a known breach of policy.  Rather, it reads as though someone informed Mr Lee of the need to include the CV of the selected candidate in the third batch of CVs, and it did not occur to him at the time to query why.  As will be seen below, this contemporaneous statement is also consistent with Mr Lee’s view contemporaneously expressed internally.

92.  EDB says, after having received the Report, it was confirmed that the School had already selected the Applicant before it made the 31 May Call to request the third batch of CVs.  Then the 19 July 2021 meeting was held (although I note that the person who first raised the suspicions, Ms Tse, was not present).  It was concluded that the provisional offer should not be issued to the Applicant because the School did not follow the standing recruiting procedures of selecting NETs from the Candidate Pool and the procedure adopted by the School was irregular and suspicious.

93.  As it was put by Mr Lam in his first affirmation, the “improper procedure adopted in the recruitment process” included the following:

(1)  Two channels, direct recruitment and selecting from the Candidate Pool, for recruiting NETs were adopted simultaneously by the School.  Direct recruitment is not allowed for government schools.

(2)  The process of interviewing candidates was already in progress when the School asked for the second batch of CVs on 26 May 2021. Specifically, eight NET candidates were shortlisted for the first round of interviews on 24 and 25 May 2021.  After the first round of interviews, three NET candidates were shortlisted for the second round of interviews on 27 and 28 May 2021.  It is dubious whether the School asked for the second batch of CVs as well as the third batch of CVs with genuine intent.

(3)  When the School asked for the third batch of CVs on 31 May 2021, the Applicant had in fact already been selected on 28 May 2021. It is suspected that the School had targeted the Applicant for recruitment. The third batch of CVs was obtained under false pretences, and solely to circumvent the standing procedure of selecting NETs from the Candidate Pool. This was also supported by the fact that when the School found the Applicant’s CV was included in the third batch, the School immediately informed the NET Admin Team of the intention to employ the Applicant on the same day.

94.  In his second affirmation, Mr Lam again emphasised his various suspicions, and that:

(1)  Principal Wong “should well understand that NETs in government schools should be recruited from the Candidate Pool only”;

(2)  that the attempted “cover up of the impropriety of the procedure is adopted and to disguise that the Applicant was recruited from the Candidate Pool”; and

(3)  that one person who was present at the meeting raised the question whether Principal Wong (who had worked with the Applicant at the TPGPS)  “had declared the potential conflict of interest before participating in the second interview or that she should not participate in the second round interview to avoid potential conflict of interest”.

95.  Insofar as Mr Lam seems to be saying that the School was trying to get around the requirement for any NET to be recruited from the Candidate Pool, that is at odds with both (a) the fact that the Applicant was in the Candidate Pool, and (b) the EDB’s case that the School specifically requested the Applicant’s CV to be given to it, which must mean that the School knew that the Applicant was in the Candidate Pool.

96.  In any event, from that evidence, and its choice of language, it is clear that Mr Lam made the Decision in large part because of his apparent suspicion that the School had acted dishonestly, in deliberate breach of a well-known “standing procedure” (i.e. the Policy), which it then tried to cover up.  There is also the suggestion, though more faintly made, that there was some form of connivance between the School/Principal Wong and the Applicant – in, for example, the comment that it is unclear how the Applicant came to learn of the NET vacancy at the School and the suggestion of Principal Wong’s potential conflict of interest.

97.  Mr Lam goes so far as to say that if he were to make a decision again, based on the information available at the meeting held on 19 July 2021 and the supplementary information provided by SSPSDS, he would make the same decision because the recruitment procedure adopted by the School “was improper”.  In other words, the Decision was not based on the mere fact of a failure to follow the Policy, but on the various suspected improprieties.

98.  Mr Lam also seems to suggest that the process conducted by the School is against the principle to ensure that the recruitment policy is open and fair, and that the principle of meritocracy, natural justice and equal opportunity was not upheld – presumably because of the suggested “improper” conduct by the School.  It is also said that because financial and manpower resources have been deployed to conduct an annual recruitment exercise, individual government schools should not unnecessarily incur resources to conduct their own recruitment in the “open market”.  Mr Lam said in terms that there would have been a misunderstanding if Principal Wong thought that she was “allowed to recruit a NET from the open market”.

99.  At this point, it is convenient to address this idea of recruitment “from the open market”.  In short, whilst the phrase might have been used loosely by Mr Lam, I agree with the Applicant that the way in which the School selected her cannot possibly be described as employment or recruitment from the “open market”.  The Applicant sent her application to re-join the Candidate Pool, and was accepted and included in the Candidate Pool.  She was eligible for employment in a GPS such as the School only because she was in the Candidate Pool, and not because she was available to be contacted in or recruited from some “open market”.

F. Further Evidence

100.  In addition to the evidence provided by the Applicant in her own affirmations, and the evidence in the affidavits/affirmations of those deponents offered by the EDB, I now have the evidence of Principal Wong.  Whilst it has been deployed by the Applicant, I have already noted that Principal Wong is a witness whom it might be thought would have been put forward by the EDB, for she is the head of the School which is said to have fallen into the “procedural error”.  That is why I have included it in this separate section.

101.  Of course, when considering and weighing Principal Wong’s evidence, I keep in mind that part of her stated reason for writing the affirmation arises from her worry that senior staff of the EDB will take wrong information from Mr Lam and take them as “facts” in their consideration as to potential disciplinary action against her, a potentiality mentioned in Mr Lam’s 2^nd affirmation, but of which she has otherwise been given no notice.  Therefore, I keep in mind the possible incentive to downplay her and the School’s possible errors.

102.  The affirmation attempts to deal with the facts and circumstances in broadly chronological order, and Principal Wong states that all the detail had previously been given to Ms Hui Po Ling (“Ms Hui”)  and Ms Lau Yuk Lin (“Ms Lau”), her supervisors in SSPSDS.  From the exhibits produced by her, that appears to be correct.

103.  Principal Wong states that one day in early May 2021, she received a call from Mr SK Lo of GSS, who told her to be alert to two NETS, the Applicant and a Michael (whose last name she cannot remember because it was very long and difficult to pronounce).  She says she reported to SSPSDS about Mr SK Lo’s phone call about the NETs that required careful handling amongst the candidates in the Candidate Pool, in a report on 8 December 2021 (which date, it might be noted, is before the EDB filed the bulk of is evidence).

104.  The School collected the first batch of 20 CVs from the NET Admin Team, and screened them for first-round interviews together with seven additional CVs, two recommended by the previous NET and five through self-submission.  I note from those last facts that at least four other NETs (in addition to the Applicant)  seem to have understood they might self-submit their CVs to the School, and the outgoing NET seemed to have understood that it was open to her to make referrals.  Those at the School also did not seem to think there was anything wrong in having received those other CVs.

105.  The English Panel Coordinators did not distinguish the source of CVs, viewing them together without prejudice to whether a candidate was recommended by other colleagues or people.  The screening for first-round interviews was conducted solely by the English panels from 17 to 21 May 2021.  Principal Wong did not take any part in that process, despite the earlier call from Mr SK Lo.

106.  Eight candidates were shortlisted for first-round interviews conducted in two sessions on 24 and 25 May 2021. The eight shortlisted candidates comprised six from the first batch of CVs, one recommended by the School’s NET (though that candidate later withdrew), and one self-submitted (being the Applicant).

107.  Sometime between 14 and 24 May 2021, Mr Lee called Ms Winnie Chan of the NET Admin Team, and enquired about the procedure and requirement for requesting a new batch of CVs.  He made it clear that the enquiry was not based on the lack of suitable candidates for interviews, and was told that the School could request a new batch at any time without constraints.  I have already touched on the fact that this is not controversial.  Prior to the second round interviews, Mr Lee contacted the NET Admin Team to request the second batch of CVs in advance in case a suitable candidate could not be selected.

108.  Following the first-round interviews, three candidates were selected for the second round. They included the Applicant and two others.  The second round interviews each lasted between 45 and 60 minutes.  All candidates were given the same opportunity to answer the same questions.  After the interviews on 28 May 2021, two English Panels, the English Supervisor and Principal Wong held a candidate round-up meeting lasting approximately one hour.  Principal Wong took part in the second round of interviews but says she had clearly declared to the recruitment board members that she had worked with the Applicant in the past and told them that she would leave it for them to make the final decision.  Principal Wong supported the unanimous decision of all members of the recruitment board in selecting the final candidate.

109.  Principal Wong says that, because of the phone call from Mr SK Lo in early May, she telephoned the GSS and spoke to Mr SK Lo on 31 May 2021 to inform that a NET recruitment process, including two rounds of interview, had been followed and that the recruitment board had selected the final candidate for the NET position.  Indeed, she had previously told teachers not to notify the Applicant yet that the School wished to appoint her, precisely because she had previously been told to handle the case with care.  Principal Wong told Mr SK Lo that the selected person was the Applicant, and asked if it was the same person he had previously told her to handle carefully. After checking, Mr SK Lo said it was the same person, and that he would report to his superior before making any reply.  A little later, Ms Ho called to enquire about the School’s interview procedure, which Principal Wong explained.  After that, Ms Ho said she considered the process transparent and that a contract could be offered to the Applicant, and that if her performance was unsatisfactory in future, her employment should be terminated. In the light of that response, Principal Wong asked Mr Lee to follow up on the matter.  I note that these matters are reflected in the Report.

110.  Principal Wong says that in the conversation between Mr Lee and Ms Winnie Chan it was realised that the Applicant’s CV had not been sent to the School in the first two batches of CVs.  So Ms Winnie Chan said the School would need to request a third batch of CVs, and she would include the Applicant’s in this batch.  That is what led to the CV request form and the later provision of the third batch of CVs, collected by the School on 1 June 2021. Principal Wong says it did not dawn on Mr Lee to query the importance or action of needing to include the CV of the selected candidate in a third batch of CVs.  I note that last statement is specifically supported rather contemporaneously by the ‘Note’ included at the end of §10 of the Report: see above.

111.  When Principal Wong received a call from Ms Tse in early June 2021, she was simply told that a colleague from the EDB would contact her later to make enquiries about the NET recruitment procedure.  On 23 June 21, Principal Wong was notified by Ms Hui that the School would be required to submit a written report on its NET recruitment procedure.  After furnishing supplemental information on five or six occasions, the Report was completed and filed on 2 July 2021. From the emails exhibited by Principal Wong, it seems that the making of the report was an iterative process, which went through several drafts exchanged between her and Ms Hui.

112.  On 5 July 2021, Ms Hui asked by email if the School had received a letter concerning NET recruitment issued to the principals of all government primary schools in late February or early March, and asked for a copy of the memo for reference. Principal Wong sent her a copy of the March Memo, and a covering letter concerning the first batch of CVs provided by the NET Admin Team.

113.  On 20 July 2021, Ms Tse called Principal Wong to tell her that the School was not allowed to hire the Applicant, and asserted that it was the School which named the Applicant as the one to be hired.  Principal Wong informed Ms Tse that, according to Mr Lee’s recollection, it was Ms Winnie Chan who indicated that she would put the Applicant’s CV in the third batch.  Ms Tse said she was not present during that conversation, nor would she seek clarification from her subordinate.

114.  On 21 July 2021, Mr Lee emailed Ms Winnie Chan about the message received the previous day that the proposed candidate for the NET post “is unable to get the provisional offer since a problem procedure-wise was found by your department”.  Mr Lee asked Ms Winnie Chan’s department to reply to the Applicant.  On the same day, the Applicant called Principal Wong to say she had been informed by the NET Admin Team that the provisional offer would not be given to her and that she was told to contact the School for information.  Principal Wong told the Applicant that the School was informed by a section of the EDB that the School had committed a procedural error of which the School had no knowledge, and that it was not the decision of the School not to hire her.

115.  On 22 July 2021, Principal Wong received a copy of a series of emails between the Applicant and the NET Admin Team, including Ms Tse’s 22 July 2021 email to the Applicant telling her to contact the school directly for details.

116.  On the same day, Mr Lee forwarded to Principal Wong a number of emails between him and the NET Admin Team, seeking to clarify that the School was in the dark about the suggestion that it had made a procedural error.  In one draft of an email to be sent to Ms Tse, Mr Lee wrote that “importantly, I do not know where the procedural problem was”.  A couple of the drafts of an email to be sent to Ms Tse include the following passage (bold in original):

It is our understanding that [the Applicant] is a qualified NET, Candidate No.: P2CA021, belonging to the candidate pool of the NET scheme for primary schools.  The school has no idea that NET CVs in the candidate pool must be from batches given by NET Admin Team.  We do not see the significance of this requirement.

The school has executed a clear, fair and proper NET recruitment process in accordance with guidelines found in documents attached in this email for your reference.

117.  Though of course after the Decision, these statements are entirely in line with what the EDB had been told by the School before the Decision.

118.  On 23 July 2021, Principal Wong was informed by Ms Hui that she should not bother the NET Admin Team any longer and that the School was required to reply to all enquiries from the Applicant, and that the replies had to be submitted to Ms Hui and Ms Lau for them to assist in vetting their contents.  As the exhibits identify, that process did ensue.

119.  On 25 July 2021, Principal Wong spoke to Ms Lau.  During the conversation, Ms Lau referenced again the phone call made by the GSS in early May and said that the Net Admin Team, the SSPSDS and the GSS had held a joint meeting.  She mentioned that it was “the Head Quarter’s decision” to instruct that the Applicant should not be hired.  Principal Wong reiterated that she had obtained approval from the GSS before proceeding to notify the Applicant.  As regards the draft letter, Ms Lau expressed some understanding that the School was in a dilemma and suggested replacing the reference “procedural error” with “a flaw in the recruitment mechanism”.  That is why that version of words appeared in the formal reply sent to the Applicant on 29 July 2021.

120.  Various other replies were sent to the Applicant’s continued correspondence, and Principal Wong says that they were all prepared in accordance with the advice given by the EDB.  For example, the statement put into an email to the Applicant that Principal Wong was terribly sorry that the School had misread Memo 36/2021 was suggested by SSPSDS.

121.  Principal Wong emphasises that the School has continuously been requested to provide further input and clarification on the various matters, from late June 2021 even up to early April 2022.  However, she has never received any enquiries asking her to clarify her “declaration of interest”.  Further, on 8 April 2022, after reading the 2^nd affirmation of Mr Lam, Principal Wong wrote an email to express disappointment and dissatisfaction about it and in particular correcting what she regards as certain biased or false opinions raised.  That email was exhibited.

122.  Even for the moment ignoring the controversial aspects of who said what in the telephone conversations in early and late May 2021, I think Principal Wong’s evidence and the exhibits give a fuller – and fairer – picture of the acts and thoughts of the relevant parties.  It is regrettable that the EDB apparently took the view that these materials need not be disclosed.  For example:

(1)  the very existence of the Policy has been called into question, and even if it exists its overly rigid application has been challenged;

(2)  similarly, the EDB placed reliance on the emails issued by Principal Wong on 29 July 2021 and 5 August 2021 as proving that she had misread Memo 36/2021, clarifying to the Applicant that government schools should follow the Policy;

(3)  so it is plainly relevant that the emails now disclosed by Principal Wong demonstrate beyond peradventure that the School personnel and others involved in the recruitment process were actually utterly unaware of the Policy – and, indeed, failed to see any rationale for it – and had no idea they might have misread Memo 36/2021.

G.   Grounds of Review

123.  Where the Applicant acts in person, the grounds put forward in the Form 86 are relatively loosely drawn.  But the real thrust of the complaints is clear.  Drawing together strands from her Form 86, evidence and submissions, I think it is fair to summarize her grounds as follows:

(1)  The EDB committed a factual error in that the Policy – that GPSs are restricted to receiving CVs only from the NET Admin Team – did not exist.

(2)  Even if there was such a Policy, the Policy is overly rigid and unreasonable.  The Applicant was in the Candidate Pool.  It should not matter whether her CV was given to the school by the NET Admin Team or by the Applicant herself.

(3)  Even if there was such a Policy, the EDB has fettered its discretion by applying it in an overly rigid manner without giving due consideration to the merits of her case.

(4)  In the context of recruiting NETs for GPSs, the EDB has failed to establish a policy with sufficient clarity and transparency to guide the exercise of discretion.  Apparently staff of the Net Admin Team, GPS school principals (e.g. Principal Wong)  and veteran NETs like the Applicant were under the impression that GPSs could receive CVs directly from candidates and/or that Memo 36/21 was applicable to GPSs.  The Policy is undocumented.  Annex B of the March Memo which allows NETs to receive a list of schools with NET vacancies suggests that candidates could approach the schools directly.

(5)  She had legitimate expectations:

 (a)  arising from the 18 May Email that she could directly supply her CV to schools, including GPSs, and that it could be considered by GPSs; and

 (b)  arising from the 2 June Email that she would receive the provisional offer, where she had submitted all that was asked of her for qualification verification and salary assessment.

(6)  It was irrational not to issue the provisional offer to her for a procedural error committed by the School but not by her. She has done nothing wrong, but was the party who was actually punished by the Decision.

(7)  The EDB failed to take into account and give proper weight to the facts that she was a qualified candidate from the Central Candidate Pool, that she had received Teacher Commendation Awards from 2018 to 2020 and obtained impressive reference letters from ex employers/colleagues, that she on her own committed no procedural errors, and that she was selected by the School after rounds of interview.

(8)  The Decision was motivated by bad faith.  Her personal data was submitted for NET recruitment was passed to personnel unrelated to the NET recruitment.  Staff from GSS had called principals of GPSs to tell them to “pay attention” to her.

(9)  There was inordinate delay in communicating the Decision to her on 21 July 2021.

124.  Ms Chan summarised the EDB’s position as follows:

(1)  the Decision is totally unrelated to any antecedent matters.  It is an isolated decision made on this occasion because the hiring recommendation made by the School is the outcome of its irregular procedure.

(2)  The EDB owes no duty to the Applicant to give its reasons for its employment decision made in discharge of its private function.  Alternatively, the reasons for the Decision are fully justified.

(3)  The Decision itself or the internal recruitment procedure is not just a ship in public law regime.

(4)  Accordingly, the present application is wrongly taken out and is totally unmeritorious.  It should be dismissed with costs.

125.  Ms Chan accepts that there may be some room for improvement in the workings of the recruitment of NETs.  But, she says, that does not mean that there was any public law failure in this case.

126.  It is convenient to consider the Grounds and responses under the following headings, though of course there is some (sometimes considerable)  overlap between them:

(1)  Whether the Policy exists.

(2)  Whether the Policy is overly rigid, or was overly rigidly applied.

(3)  Irrationality.

(4)  Bad faith.

(5)  Legitimate expectation.

(6)  Reasons, Delay and Privacy.

H.   Reviewability of the Decision

127.  Before turning to consider the merits of the challenge, it is necessary to consider the EDB’s primary point that the Decision is an employment decision, which was made by the EDB in its private capacity as an employer, and so is not amenable to judicial review.

128.  Ms Chan submits that the Policy is a self-regulating practice formulated by the EDB to regulate its recruitment process.  She says the facts that the employer happens to be a public authority, or that there might be some public element in the decisions or some public interest considerations in the decision-making process, do not change the private nature of the Decision.

129.  Ms Chan further submits – citing Cheng Chun Ngai Daniel v Hospital Authority (unreported, HCAL 202/2002, 12 November 2004)  §§16-27 – that the legal test for determining whether a decision is of a public nature is the source of the power of the decision maker, whether the power is statutory or whether the decision was made in discharge of a public law function.

130.  Ms Chan draws attention to the lack of statutory underpinning of the NET recruitment in government schools, which are specifically exempted from the operation of the EO.  She also relies on Chik Po Yee v Vocational Training Council (unreported, CACV 78/2006, 25 April 2007)  at §55, where Ma CJHC (as he then was)  said, in the context of a dismissal decision against a lecturer employed by the Vocational Training Council, the general approach is to see whether there are any statutory underpinnings to employment.

131.  Here, Ms Chan emphasises that the EDB is the operator of 65 government schools, including 34 government primary schools.  In formulating its recruitment practice, the EDB is no different from operators of other types of schools; its procedure is internal, and did not involve discharging a statutory or public function.  Further, Ms Chan says that questions of procedural fairness in the public law sense do not arise in the prospective employment situation, because the decision-making process does not afford a job applicant any legal right of inquiry or representation.

132.  I think the starting point – as can be seen for example in the Daniel Cheng case at §16 – is that reviewability admits of no universal test, though it is settled that the decision must be one of a public nature as opposed to one of a purely private or domestic character.  Whether a decision has sufficient public elements to warrant the intervention of public law is a matter of overall impression, of feel or one of degree: see, for example, R (Tucker)  v Director General of the National Crime Squad [2003]EWCA Civ at §§13-14; and R (Beer)  v Hampshire Farmers Market Ltd [2004] 1 WLR 233 at §12.

133.  Public law elements take various different forms.  Whilst the exercise of public power, statutory underpinning and the discharge of public functions are often viewed as important indicators of amenability, the list of public elements are non-exhaustive.

134.  Nor should the description of “employment matters” or “employment-related matters” automatically put the decision outside the realm of judicial review.  It is necessary to examine the challenged decision to see if sufficient public law elements could be found.  It is, of course, fair to say the Court often finds decisions made in the employment context (or in another or broader contractual context)  to be non-reviewable.  But closer scrutiny of the authorities reveals that the non-reviewability found in those cases results from the fact the complaints or the attacks on the decision rest not on a breach of public law duties, but private law duties.  The imposition of public law duties flow from the public nature of the power involved, which is exercised for the discharge of public function.  But, it is perhaps helpful first to look at the employment or contract cases before turning to reviewability of the instant Decision, to see why the Court has found the required public law elements wanting.

135.  From employment-related cases, such as R v East Berkshire Health Authority, ex p Walsh [1984] 3 WLR 818 (cited in the Daniel Cheng case)  the following broad propositions can be taken: (1) the employer being a public authority does not on its own inject any element of public law into the decision; (2) but disputes arising from employment relationship are not immune from judicial review; (3) insofar as the complaints or the grounds of challenge concern a breach of the authority’s public law duties, rather than its private law duties imposed by the employment contract, such complaints are reviewable; (4) statutory regulation of the employment relationship could give rise to public law duties; and (5) the breach of such public law duties warrants the intervention by way of judicial review.

136.  Whilst statutory underpinning may be important in shedding light on the nature of the power exercised and duties imposed, it is not the only way to inject the required public law elements: see Civil Service Unions v Minister for the Civil Service [1985] ICR 14 (“GCHQ case”).

137.  In R v Derbyshire County Council, ex parte Noble [1990] ICR 808 (also cited in the Daniel Cheng case)  it was highlighted that it is insufficient to show that the decision maker is generally empowered by public law, but that the specific power exercised in the decision sought to be reviewed has to be public in nature.  In dismissing a police surgeon, that being the target of the relevant complaint, the authority had exercised its private law right arising from the surgeon’s terms of contract, and the public law elements on which reliance was placed did not go to the dismissal.

138.  In the Chik Po Yee case at §§54-74, cited by Ms Chan, the applicant lecturer complained that the disciplinary proceeding by which she was dismissed had proceeded unfairly.  It was held that the proceeding was not underpinned by any statute, but rather by her Conditions of Service.  In the absence of statutory underpinning, the lecturer’s complaint arose not from any breach of statutory duties, and had to be based upon her employment contract with the authority.  There was no sufficient public element to warrant judicial intervention.  However, I do not think the Chik Po Yee case can be taken as authority that the only way to inject a public law element to the employment context is if the alleged duties breached are underpinned by statute.  The GCHQ case has made it clear otherwise.  It happened that statutory underpinning was the only public element argued in Chik Po Yee, and the Court did not need to deal with other possible public law elements.

139.  No reference has been made to any case where the decision challenged was the authority’s refusal to enter into an employment contract with the applicant.  But there is a body of case law in which an authority contracted out public services by way of a tendering process when such process is not underpinned by statute.  The unsuccessful tenderer challenged the decision for unfairness arising from the tendering process.  In cases where decisions were found to be not reviewable, the Court often considered the tendering process a commercial function; the contract to be awarded a commercial contract; and that the decision challenged was in truth a commercial dispute between a successful and an unsuccessful tenderer: see, for example, R v Lord Chancellor Ex p. Hibbit and Sanders (The Times, 12 March 1993). In that case, it appeared that the public importance of the court reporting services was not considered by the Court to have injected sufficient public law elements.

140.  However, the importance of the public function to be performed under the government contract to be awarded did persuade the Court in R v Legal Aid Board, ex parte Donn & Co. [1996] 3 All ER 1 to hold the contracting decision to be reviewable.  The case concerned the tendering process for a contract to represent a group of legally aided persons. The Court was eventually persuaded by the applicant that there were sufficient public elements arising from the combination of the following: (1) The Legal Aid Board in the tendering process was considering the allocation of very large sums of public money, (2) on behalf of litigants who could not otherwise afford to seek compensation to which, under the law, they might legitimately be entitled, (3) the public importance of selecting the right solicitors in the interest of the plaintiff, the defendant and the court, and (4) the Board is the sole and final arbiter of selection.  The Court said that the answer of reviewability is ultimately one of overall impression and degree, and the function exercised by the tendering committee, the purpose for which they were empowered to act and the consequence of the decision-making process all demand the conclusion that it would be wrong to characterise the matter as one of private law.

141.  Insofar as the tendering cases are found to be non-reviewable because it was considered to be commercial disputes among competing tenderers, I do not think much assistance can be derived for the present purposes.  The recruitment process for NETs does not have as much a commercial dimension as tendering process for government contracts.  Nor are the EDB’s dealings with prospective NETs comparable to the government’s dealings with commercial entities in a competing bidding process.

142.  The Court should, in an appropriate case, consider the importance of the public function to be performed as relevant, where the discharge of public function is traditionally considered as an important pointer towards reviewability: see, for example, the Hampshire Farmers Market Ltd case at §16.  Hence, there will be cases like the Donn case, in which the function to be performed will be considered too compelling not to be taken into account in the process of evaluation as to reviewability.

143.  Looking at whether there are sufficient public elements in the NET recruitment process leading to the Decision challenged in this case, I have come to the view that there are.  The power exercised by the EDB in the recruitment process was at least partly public in nature and/or in pursuance of a public function.  The Applicant’s grounds of challenge concern the EDB’s breach of duties owed to her as a matter of public, rather than just private, law.  I have in mind that:

(1)  It is beyond question that the NET Scheme is part of the Government’s overall education policy, when the NET Scheme itself was announced by the Chief Executive in the policy address.

(2)  The actual selection and employment of NETs is obviously crucial to the operation of the Scheme.

(3)  The central importance of a teacher’s role in education needs little explanation.

(4)  Thus, it is hardly surprising that the required qualifications and remuneration packages of NETs have been the subject of debate in the LegCo.

(5)  The power exercised by the EDB in implementing the NET Scheme must be the power enabling it to implement its overall education policy, which is undoubtedly a public law power.

(6)  The recruitment of NETs is part and parcel of and interwoven with the NET Scheme and must be effected by the same public power under which the NET Scheme is implemented.

(7)  It would be inappropriate to separate the recruitment of NETs from the NET Scheme and to say that the former performs a different function from the latter.

(8)  There may, of course, be the employment of personnel who are far more remote from the implementation of education policy, for example supporting clerical or administrative staff of a school, where their employment would likely be viewed as a private matter.

(9)  But NETs clearly fall at the other end of the spectrum.

(10)  If there be any doubt on the nature of power exercised in the recruitment of NETs, the examination of the function performed in the recruitment process also points to the public nature of the decision.

(11)  It also bears emphasis that the NET Scheme is applied across the whole public school sector, without distinction between government schools and aided schools.

(12)  Even though a NET employed by an aided school is an employee of the aided school, rather than that of the EDB, the EDB is able to control the qualification, remuneration and so on of such a NET.

(13)  That would undoubtedly be the exercise of a public law power, perhaps under the EO or the common law.

(14)  A decision by the EDB in that context would be susceptible to judicial review, and it would be surprising if the same decision taken by EDB in respect of recruitment of NETs, albeit in government schools, should not attract similar judicial scrutiny.

144.  It can also be remembered that Mr Lam’s own evidence was that the recruitment policy should be open and fair, and that the principles of meritocracy, natural justice and equal opportunity should be upheld – language echoing some of the requirements of public law.  This seems at odds with the EDB’s case that it can make any employment decision without adhering to the requirements or standards commonly imposed under principles of public law, and without giving any reasons for the decision.

145.  Further, the Applicant challenges not only the recruitment decision in her individual case, but also the Policy which the EDB says to be in existence and, of course, to be applicable to all NET candidates for all government schools.  In contrast to a decision against a particular employee, a decision of general application by the employer, such as a general employment policy or practice, is more likely amenable to review: see, for example, the distinction drawn in the Noble case at 819G, 820F-G.

146.  The proposition that the government’s employment policy affecting staff in general is susceptible to judicial review has often said to have been rightly conceded by the government authority in question: see McClaren v Home office [1990] ICR 824 at 827 (also referring to the GCHQ case); and Soomatee Gokool v Permanent Secretary of the Ministry of Health and Quality of Life [2008] UKPC 54 at §2.  In the present case, the Policy has general application in the recruitment of all NETs in all government schools.

147.  Lastly, amongst the various grounds of review advanced by the Applicant, is the alleged bad faith on the part of EDB personnel.  Judicial review for this type of challenge is available even if the decision is otherwise made in the context which would normally be a matter of only private law.

148.  My conclusion on reviewability or amenability is that the Decision is amenable to judicial review.

I.   Merits of the Grounds – Context

149.  The Applicant seeks to put her present challenge into the context of the previous decision not to renew her contract at the end of the academic year 2019/20.  Particularly in light of the repeated commendations received by her, she regards that decision as having been unfair, and an illogical response.  She also suggests that it is in breach of the ‘Code for the Education Profession of Hong Kong’, in particular its ‘Chapter 3: Rights’.  She says the problem stems from her active involvement on the SMC, where she was regarded as a troublemaker and where there was ‘bad blood’ between her and the Chairman of the SMC, an officer of the EDB.

150.  On the other hand, Ms Chan says that the Decision is unrelated to any antecedent matters, being an isolated decision made on this occasion because the hiring recommendation made by the School was the outcome of its irregular procedure.

151.  Whilst I see some force in the Applicant’s expressions of concern about her previous employment, I do not think that can provide much assistance as regards the present challenge, save perhaps in one respect.  That is in respect of the allegation that a view had been formed by certain persons within the EDB that it might be preferable for the Applicant not to be employed in a government school.

152.  Even then, I do not think it necessary to rehearse the previous history and make any determination of the rights or wrongs of the past dealings.  I simply note the facts evident from the emails sent by the Applicant, to which I have already averted.

J.  Whether the Policy Exists

153.  The Applicant points to the absence of any documents produced by the deponents for the EDB to prove any “internal policy”, and the absence of any documents purporting to communicate such a policy.  I agree that these are factors suggestive of the non-existence of the Policy.  If there is no document in which a policy is described and delineated, or by which its intended application can be communicated to those to whom the policy is relevant, that must cast grave doubt on whether such a policy really exists.

154.  Ms Chan submits that whilst the Policy is not documented, reliance can be placed on the fact that there are only 34 GPSs, in close working communications at central level and district level (hence the involvement of the SSPSDS).  Every year, around March, the AP Section contacts schools with NET contracts expiring.  This happened in March 2021, by the 2 March 2021 Memo, and the School replied. 

155.  But, that there may be a limit to the application of the Policy – as there is a limit to the application of any policy – and it may be said that relatively few people need to know of it or implement it, that still does not in any way positively demonstrate the existence of the Policy.  Further, at the very least, it does not demonstrate any clear communication of such a policy to those who would need to know about it, so as to follow it and implement it.  Indeed, nowhere in the EDB evidence is it suggested that schools were in fact informed about the policy, even if only verbally.  It is difficult to see how any policy is intended to operate if those who are intended to operate it do not have it clearly communicated to them.

156.  Indeed, there is real force in the Applicant’s submission that the existence of such a Policy is contradicted by the experience of other school principals, demonstrated by her own enquiries as put into her evidence (even if hearsay), as well as the actions of the School staff and Principal Wong in this particular case.

157.  I have commented on the fact that there are a number of other actors involved in this particular case, whose actions tend to demonstrate the absence of any clear knowledge of such a Policy.  Therefore, even leaving aside whether the Policy really exists, the lack of knowledge and/or the confusion about it tends to confirm that the Policy is at least far from clear and has never been properly communicated to those supposedly bound by and effecting it.  Reference can be made to:

(1)  the previous NET, who obviously thought there was no impediment for her to make referrals and for the School to accept her referrals of candidates to replace her;

(2)  the other NETs, who also seem to have thought there was no impediment for them to make self-submission of a CV and for the School to accept self-submitted CVs;

(3)  even various EDB staff, who have acted in ways which do not demonstrate knowledge of and/or the attempt to comply and enforce compliance with the Policy – see, for example, (a) the at least unclear and ambiguous 18 May Email, and (b) the conversation between Ms Winnie Chan and Mr Lee about the third batch of CVs, and Ms Winnie Chan’s failure to alert anyone to the so-called breach of a fixed Policy; and

(4)  the EDB does not say that it has, or how it has, actually communicated the Policy.

158.  In her submissions, Ms Chan had criticised the Applicant for not adducing any evidence from Principal Wong or Mr Lee in support of their understanding of the recruitment procedure for GPSs, namely that it was open to NETs to send their CVs directly to the recruiting schools. That criticism seems to me to be a bit rich, as it was perfectly open to the EDB to have produced both Principal Wong and Mr Lee as witnesses. Indeed, as the representatives of the School who conducted the particular recruitment procedure in this case, it might be thought that they would have been obvious deponents to be put forward by the EDB on its own behalf.

159.  Of course, on the materials now obtained – following Principal Wong’s overcoming her perhaps understandable original reluctance to give evidence – it might be understood why she and Mr Lee would not have been offered as witnesses on behalf of the EDB.  The internal statements made by them in various contemporaneous documents make it absolutely clear that they had no idea what they had done wrong, because they had no idea of the existence of the Policy.  Whether or not they ought to have known of it might be a different question, but it seems clear that they did not know of it – and if they did not know of it, and were plainly not alone in that regard, that might be because it does not exist.

160.  Further, Ms Chan’s intended reliance on the contemporaneous emails issued by Principal Wong needs to be seen in light of the fact that many of those emails were in fact the result of an after the event collaborative or vetting process involving senior staff of the EDB.  I do not think that it was entirely fair to seek to rely upon what Principal Wong said in various emails, without calling her as a witness (by affirmation)  to speak to those emails, not least when the EDB would have known – as is now revealed – that those emails were certainly not the product just of Principal Wong’s own thoughts.  Indeed, they also reflect a change of view from the original Report, following the apparent ‘education’ or ‘clarification’ given to the School as to the existence and terms of the Policy.

161.  The Policy also does not sit happily with the GSS employment guidelines on hiring temporary teachers, under which schools are allowed to get CVs from sources including self-submission, so long as those teachers are registered as teachers and added to the applicant list.  Exhibited by the Applicant are various letters from 2016 to 2019, addressed to school principals, which (although also referring to a previous Memo 44/2019)  include a passage relating to ‘Appointment of Temporary NET’ which states:

Under special circumstances, schools not being able to find a suitable teacher to fill the vacant NET post after considering all the candidates referred by the EDB and/or conducting their own recruitment exercise may apply to their respective Senior School Development Officer for permission to appoint a temporary NET.

162.  The same passage is also to be found in a similar letter dated 27 July 2021, this time referring to Memo 36/2021, and I note that that letter was signed by Mr Lam.  The reference to considering candidates referred by the EDB “and/or” conducting their own recruitment exercise seems to state that schools are permitted to do either or both. 

163.  There is also the evidence that, following a change made in 2019/20, a returning EDB NET whose personal file had been reinstated in the Candidate Pool was eligible to request a list of primary schools with NET vacancies by filling in Form or Appendix B. 

164.  I have also already noted that the Appendix also contains the reference to fully understanding that whether an appointment is offered “is at the full discretion of the schools granting me interviews”.  Anyway, as regards how any NET comes to learn of potential vacancies, there is simply no need for – and no particular claim to – any secrecy as to those schools with NET vacancies.

165.  Lastly, the existence of the Policy might be easier to accept if a sensible rationale for it were to be identified.  Despite my repeated questions about it, Ms Chan was only able to refer to the idea that the EDB had deployed resources in building the Candidate Pool.  Ms Chan submits that, whilst government schools and the NET Admin Team are both part of the EDB, it is overlapping and a waste of resources for them to conduct separate recruitment exercises.  That submission is misplaced.  They do not conduct separate recruitment exercises.  The NET Admin Team conducts the process of identifying NETs suitable for inclusion within the Candidate Pool. The schools then conduct the process of choosing from amongst those candidates the particular individual which the schools wish to appoint to the vacancies at their schools, in light of the schools’ own requirements.

166.  Whilst it may be convenient for a school to obtain CVs from the EDB, I share Mr Lee’s inability to understand the rationale for saying schools must obtain CVs only from the EDB (if those otherwise received are CVs of persons in the Candidate Pool).  This is a point which can also be made in the context of the question whether the Policy, if it exists, is overly rigid or was overly rigidly applied.

167.  Presumably the point of the School obtaining CVs is for the School to decide which candidates in the Candidate Pool it would potentially wish to interview.  That is the ordinary purpose of obtaining a CV.  The CV may identify reasons to choose to interview, and reasons to choose not to interview, that particular candidate. 

168.  There is no apparent limit to the number of candidates a School may choose to interview, and there is expressly no limit to the number of CVs which the School may request.  In other words, though for practical reasons it might not do so, the School (like any other government school)  might choose to request the CVs of every candidate within the Candidate Pool.

169.  Whilst inclusion on the Candidate Pool identifies that the candidate is suitable and eligible (pre-approved)  for employment by a government school (and, indeed, aided schools), it is left to the individual school to decide which candidates to interview, and which candidate to select, for its own particular reasons.

170.  Therefore, I reject the submission that the School’s role in recruitment of the NET is merely passive and supporting. Rather, far from that, the School and its Principal play a critical role in selecting the candidate and/or renewing a NET contract.  I agree with the Applicant that the point relating to renewal is important, because no vacancy triggering the recruitment process arises at all unless the School decides not to renew the existing NET’s contract.  Each year, the EDB asks if the schools intend to renew the current NET’s contract or to seek to recruit a new NET (and perhaps to say why).  In practical terms it is the School which makes the decision to fire or hire the actual NET, in accordance with the School’s own views and needs.  That is what is indicated in the EDB’s own documents, such as what Ms Winnie Chan said in her 14 April 2021 email by referring to the fact that whether a NET is offered an appointment as at the full discretion of the schools: see above.

171.  In conclusion, I think there is a very strong argument that the Policy as now described did not in fact truly exist. Nevertheless, I probably do not need to make a final determination on this point in light of my views on the other points: see below.

K.  Whether the Policy is Overly Rigid, or was Overly Rigidly Applied

172.  The principle that a decision-maker should not adopt a policy so rigid as to fetter his own discretion is well-settled.  If authority is needed, reference can be made to Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp [2009] 5 HKLRD 620 which at §33 cited with approval the explanation given in De Smith’s Judicial Review at § 9-002 (now to be found in the 8^th edition, 2021)  of the public law grounds against the fettering of a discretion, and why courts will scrutinise closely the conduct of a decision-maker in assessing whether or not he has unlawfully fettered his discretion, in the following way:

A decision-making body exercising public functions which is entrusted with discretion must not, by the adoption of a fixed rule or policy, disable itself from exercising its discretion in individual cases.  It may not “fetter” its discretion.  A public authority that does fetter its discretion in that way may offend against either or both of two grounds of judicial review: the ground of legality and the ground of procedural propriety.

173.  If the Policy did exist, the total rigidity of it has been identified in the EDB’s description of it.

174.  But, even if the Policy is not to be regarded as being itself so rigid as to constitute an unlawful fetter, the Policy has in this case been overly rigidly applied:

(1)  the Applicant was an approved person within the Candidate Pool;

(2)  her CV was therefore available to be provided to schools wishing to fill a NET vacancy;

(3)  there is no limit to the number of CVs which might be obtained by any school (even if the CVs would be provided by the EDB in ‘random’ batches of 20 at a time);

(4)  indeed, on Ms Winnie Chan’s evidence, any ‘random’ sampling is nevertheless made from the CVs of candidates whose particular CV has not already been provided to the requesting the school;

(5)  the Applicant’s CV might have been provided to the School as part of any one of the batches as might have been provided in response to the unlimited requests which the School might have made;

(6)  on the EDB’s own evidence, the Applicant’s CV was provided to the School as part of a batch of CVs randomly drawn;

(7)  the Applicant was selected by the School following an open and transparent selection and interview process;

(8)  that process was for the School to conduct, so as to be able to select the candidate the School wished to appoint, because the School thought in the exercise of its discretion that that candidate was the person to appoint in the best interests of the School’s pupils;

(9)  leaving aside the various suspicions (which did not form part of any reasoning given to the Applicant, and as to which see below)  the only objection to the process was that the Applicant’s CV had also been provided by her directly to the School;

(10)  any idea that the Applicant had been recruited from the “open market” is utterly unsustainable.

175.  Further, there can be no proper suggestion that the Applicant herself had done anything wrong: see above.  It was an overly rigid application of the Policy in effect to deprive the Applicant of the employment for what she had been fairly selected.  It was also an overly rigid application of the Policy in effect to deprive the School’s pupils of the services of an eligible candidate whom the School had identified as its choice for those pupils’ interests.

176.  Relying on the explanation given by Mr Lam, Ms Chan submits that the fact that the Applicant happens to have a CV approved for her entry into the Candidate Pool, and that the School happens to have obtained a copy of that CV, does not mean that there can be a departure from the Policy.  But that submission seems to me only to emphasise either that the Policy was unlawfully rigid, or that there was the blindly overly rigid application of the Policy to the particular circumstances.

L.  Irrationality

177.  A number of the above points might also be relevant to irrationality, though I will not repeat them.

178.  As already identified, things went smoothly during the recruitment process until 15 June 2021 when Ms Tse saw what she thought was an irregularity in that process, as she has explained in her affirmation.  The case was raised internally, and eventually brought up to Mr Lam.  The Decision was made by Mr Lam, after or in the 19 July 2021 meeting called for this purpose, to discuss this issue.

179.  The Applicant submits that Mr Lam proceeded on faulty information at the meeting.  He took into account wrong facts – such as the suggestion that the selection process conducted by the School had been completed within a half day (when in fact it took 12 days).  He applied a policy which either did not exist or was overly rigid in its application. Rather than being a true meeting, Mr Lam used the opportunity to “educate” other staff members as to the existence of such a Policy.  Further, in so far as Mr Lam relied on materials provided by the School, it is clear that the investigation of what the School thought and did was not complete, and indeed it continued for many months after the date of the meeting.  There is force in all these points.

180.  Also relevant is a piece of evidence in Ms Ho’s affirmation, where she says:

Because of these proceedings, I have read the court documents mentioned in the above paragraph 3 [ie the Form 86, the applicant’s 1^st and 2^nd affirmations and Mr Lam’s 1^st affirmation] and have now known the irregularity in the recruitment procedure adopted by [the School] which has been explained in Lam’s 1^st Aff.

181.  That sentence suggests that Ms Ho only learned of the “irregularity” in the recruitment procedure from reading the court documents in these proceedings.  If so, that rather casts some doubt on Mr Lam’s description of what he says occurred at the 19 July 2021 meeting, at which Ms Ho was present, and where Mr Lam says that “All participating officers … agreed that [the School] made serious procedural errors in the recruitment exercise”.

182.  This is one of the problems arising from the absence of any contemporaneous material as to that meeting.  The problem is then compounded by the fact that the actual decision-maker in essence relied on the School, and Principal Wong, to notify the Applicant of the Decision and the reasons for it.  Even though it seems that the reason provided by the School was the result of some collaboration with officers of the EDB, it seems clear that the School was not told the real reason was, or was in large part, because of suspected impropriety of the various forms now explained by Mr Lam.

183.  That leads to the next point.  As I have already identified above, Mr Lam’s evidence makes it plain that he made the Decision in large part because of his apparent suspicions that (1) the School had acted dishonestly, (2) in deliberate breach of a well-known “standing procedure” (i.e. the Policy), which (3) the School then tried to cover up.  There is also the suggestion that there was some form of connivance between the School/Principal Wong and the Applicant.  Reference was made to the Applicant being “targeted”, that it is unclear how the Applicant came to learn of the NET vacancy at the School, and that there may have been a conflict of interest.

184.  On that basis, it might be thought that Mr Lam did not make the Decision merely on the basis that there had been a breach of the Policy as to the means by which the School could obtain CVs of candidates within the Candidate Pool.  On Mr Lam’s evidence, what really concerned him, and what really drove the Decision, was the suspicion that the Applicant had been targeted for the NET vacancy at the School, perhaps as a result of Principal Wong acting in conflict of interest, and that there was a deliberate and dishonest attempt at a cover-up.

185.  But, there is a stark mis-match in the reasoning for the Decision offered by Mr Lam and the reasoning for the Decision provided by the School (after EDB input)  to the Applicant.  The only reason provided to the Applicant as underpinning the Decision is simply that there was a procedural error made by the School (i.e. the breach of the Policy).  If, as seems the case, that was not the real reason – or, at least, not the full and complete reasons – for the Decision, that fact:

(1)  seems to lend some support to the idea that the Policy does not really exist; and/or

(2)  seems to contradict the EDB’s case now that a mere breach of the Policy must result in the interference in the recruitment process to rule out the candidate identified and selected in that process.

186.  On the other hand, if the Decision was simply based upon a breach of the Policy, the reason for the breach might be rather less important.  If so, it was something that ought not to have been taken into account in the way it apparently was.  Indeed, if there was a clear breach of a clear policy, it might also be asked why it was necessary to hold a specific meeting amongst various senior personnel of three sections of the EDB.

187.  Insofar as the Decision was based on the thinking that the Applicant was targeted, no proper reason has been offered by Mr Lam why he thought the two-round interview process was not genuine, and I do not think the targeting suggestion could properly have been taken into account in the way it was. 

188.  Insofar as Mr Lam took into account any suggested lack of clarity as to how the Applicant knew of the vacancy at the School, that seems to go against his own evidence that the number of schools was small (as would be the corresponding and usually still smaller number of vacancies), and ignores the real possibility that NET teachers know and communicate with others, so will find out when vacancies might arise and where.  It also ignores the fact that there is no secrecy as to vacancies, nor any real need for secrecy.

189.  In so far as the Decision was in any way based upon the idea that Principal Wong had acted in a position of conflict of interest, without any declaration of interest, that was wholly inappropriate.  Simple enquiries would have revealed that such a concern was misplaced.  The Applicant has given evidence that she had specifically greeted Principal Wong in the second job interview on 27 May 2021, saying in front of the other panel members how nice it was to see her again after having worked with her previously at TPGPS.  Further, Principal Wong has herself explained the true position – see above – which Mr Lam might have discovered had he asked a direct question, instead of proceeding on a false assumption.  If their words were in any way doubted, the other panel members present at the interview and subsequent deliberations might have been consulted as to their own recollections.

190.  In so far as the Decision was based in any way upon the idea that the second and third batches of CVs requested by the School were requested under false pretences, that was also wholly inappropriate without first having made any inquiry of the person who made those requests, Mr Lee.  Indeed, insofar as the Decision was based upon the idea that the NETs Admin Team would only provide a further batch of CVs in case the School could not find a suitable candidate in earlier batches – a suggestion made in Mr Lam’s affidavit – that is not supported by Ms Winnie Chan’s evidence.

191.  It can also be noted that Ms Winnie Chan does not even directly depose to the fact that Mr Lee asked for a third batch of CVs, but merely that he requested a CV of the Applicant whom the School would like to recruit and who he understood was in the Candidate Pool. It was Ms Winnie Chan who did not reply directly, except to say that she would proceed to draw a third batch CVs and it would be ready for collection later.  Indeed, in passing, if the Policy existed and was well known – and after Mr Lee requested the Applicant’s CV on the basis that the School wanted to recruit her – it might be asked why Ms Chan did not identify at once that a problem had already occurred, and that the School was not permitted to recruit a person whose CV was not already included in a batch of CVs previously sent from the EDB direct.  In any event, Ms Winnie Chan did not seem to find there to be any problem in sending another batch of CVs to the School, even after she had been told the School had already accepted a named candidate in the Candidate Pool.

192.  Anyway, on the basis that Mr Lee’s supposed request to include the Applicant’s CV in the third batch was not acceded to, so that the CV of the Applicant was included “solely by chance” – i.e. on the EDB’s own case – it may be wondered what the problem is.  The Applicant’s CV could have been obtained randomly at any time, on any one of the unlimited requests for CVs that the School was entitled to make, and the CV was in fact received.  The Applicant was selected through an open and transparent interview and selection process, apparently accepted by Ms Ho as such shortly after the event and before the Applicant was contacted to be asked whether she would accept the position at the School: see below.

193.  The reasons for the Decision described by Mr Lam were based on his various suspicions of improper conduct.  It is now known that enquires into the relevant conduct have continued almost up to the hearing in this case.  The suspicions are of dishonesty, deliberate breach, cover-up and perhaps connivance – serious criticisms.  To have acted on mere suspicion of such conduct, without first making even some of the more obvious enquiries to see if the suspicions were well-founded seems to me to be unreasonable in the public law sense.  Indeed, by the time of the Decision, the EDB knew that the central plank of the suspicions – namely, that the School knew of the Policy – had been clearly refuted in the School’s own responses to enquiries made of it by the EDB.  If the School did not know of the Policy – which is wholly understandable when it is not to be found described in or informed by any document, and where it has no obvious rationale – then the idea that the School deliberately contravened the Policy, and then made an attempt to cover up that contravention, should fall away.

194.  Further, on the mis-match between the stated reasons for the Decision (Mr Lam’s explanation as against what the Applicant was told), this is one of those cases where the EDB cannot have it both ways.  Indeed, on the particular mis-match, I think the EDB cannot have it either way:

(1)  If the only reason for the Decision was the mere breach of the Policy, without looking at any of the other circumstances, that was unlawful in being either the application of an overly rigid policy, or its overly rigid application. 

(2)  If the real reasons for the Decision were the suspected circumstances of dishonesty leading to the breach of the Policy, it was irrational and unreasonable in the public law sense to have taken those into account in the way that occurred, for the reasons I have identified.

195.  Irrationality might also be seen in the fact that the Applicant fulfilled all requirements to rejoin the Candidate Pool, and she completed all required recruitment procedure.  Later, after the Decision was notified to her, out of the blue, no reason was given for some time, even when requested.  It is now clear that was because the precise formulation of a reason was still being worked out.

M.  Bad faith

196.  The allegation of bad faith rests upon the idea that it had been decided within the EDB that the Applicant ought not to find a NET post.

197.  Of course, it might be said if that was the real aim, why include her at all in the Candidate Pool.  But clearly she was well-qualified to be included, and to have excluded her might have attracted scrutiny.  If there was really bad faith, it might only have been needed if the Applicant’s CV was obtained by a school, which then chose to interview her, and then offer her a place.  That might not happen, especially if schools had already been warned off.  This is the possible context as to alleged call in early May.

198.  So perhaps it might first be asked why anyone from GSS would contact the principals of the GPSs with NET vacancies in the first place.

199.  As to the hearsay evidence given by the Applicant – and now supported by Principal Wong – about the telephone call between Mr SK Lo and Principal Wong in early May 2021, Mr SK Lo has filed an affirmation.  He says that he did not do anything as is alleged on work instructions given by anyone in EDB, nor did he himself do anything for the purpose alleged by the Applicant. He says he did not badmouth any candidate.  However, he does confirm that he was asked by Ms Ho to contact the school principals of the four GPSs needing to recruit a replacement NET, and that he indeed called the principals, including Principal Wong, in early May 2021.

200.  Remembering that the allegation was first made by the Applicant in her first affirmation, Mr SK Lo’s evidence is entirely corroborative of at least the facts of the call, who instigated it, and the participants on the call.  That is reasonably telling.  But, Mr SK Lo says the purpose of the call was to remind the principals “to arrange recruitment timely and select a competent NET teacher by adhering to established procedures”.  I confess that explanation rings as somewhat contrived, and there is some force in the Applicant’s questioning why anyone from the GSS would need to contact the four GPSs at all if the well-established routine (i.e. the Policy)  existed and was to be dealt with by the NET Admin Team.

201.  It seems clear on the totality of the evidence that the kind of telephone call made by Mr SK Lo of GSS is unlikely usual practice.  I also think there is some tension between the EDB’s suggestion that it was “normal” and the other points made by the EDB that this was a system everybody knew and fully understood and operated without question.  That is not to say that what Mr SK Lo is said to have told the school principals would necessarily be regarded as ‘badmouthing’ the Applicant or as a coded instruction not to employ her.  After all, what is alleged to have been said was to pay “attention to” or “handle carefully” these two NETs.  Against the history, it might have been that the alert or warning was to inform school principals that the Applicant had shown herself to be ‘not backward in coming forward’ and ready to engage in strongly-worded correspondence when faced with matters she found unsatisfactory.  But, if said along those lines, that would still likely be understood as at least discouragement from employing the Applicant.

202.  But it seems to me to be also highly significant that Mr SK Lo also speaks to the conversation he had when Principal Wong called him on 31 May 2021 – and about which there is less controversy.  In that call, Principal Wong told him she had identified a suitable replacement NET – and gave him the Applicant’s name – and asked if she could designate the Applicant to take up the NET vacancy.  The very fact that that call was made – which Ms Ho regards as unusual in itself, see below – lends some credence to the suggestion that there had been the previous call when Principal Wong had been warned about the Applicant.  There is cogency in the view that Principal Wong made this unusual call to ask GSS if she might designate the Applicant precisely because she had earlier been told by GSS to be alert to the Applicant.  Mr SK Lo says he emphasised to Principal Wong “the importance of a fair selection of a competent NET”.  It might reasonably be asked why that needed to be emphasised at all, unless in the context of a concern that the Applicant was either not competent or might not be the subject of a fair selection.

203.  In her evidence, Ms Ho stated she found it unusual for school heads to consult officers in GSS on whether the School could employ an identified teacher.  Again that supports the thought that the school head in question, Principal Wong, had been given some prior reason why she ought to ask if she could employ this identified teacher, the Applicant.  As it was unusual, Ms Ho thought it appropriate to call back to Principal Wong and advise the School to holistically consider the suitability of all candidates.  During the phone conversation, Principal Wong mentioned that the School would like to hire the Applicant as a NET, after two rounds of selection interviews involving more than one NET candidate being shortlisted after the first round interviews.  Based on the conversation, Ms Ho did not make any adverse comments on the intended recruitment recommendation as it should be made based on the interview results.  (I have also already referred to the fact that Ms Ho did not seem to be aware that there had been any “irregularities” until she read the papers in these proceedings, and notwithstanding her presence at the meeting on 19 July 2021 when the Decision was apparently made.)

204.  There is also some logic in thinking that the absence of a clear rationale for the existence of the Policy, alternatively anything approaching what would seem to be a fair application of the Policy to the particular circumstances, itself increases the likelihood that there was some alternate reason for the Decision, increasing the possibility of bad faith.

205.  Overall, on the evidence as a whole and its inherent likelihoods (and still bearing in mind bad faith is also a serious allegation), I think there is a strong possibility that Principal Wong had been called in early May to be warned to be alert to the Applicant and Michael.  However, in light of my other conclusions, and without any live evidence on the point, I do not think it necessary for me to reach a final determination on this point.

N.  Legitimate Expectation

206.  I also do not think I need to spend much time on considering the argument as to legitimate expectation.  The Applicant’s case in this regard is that having been told that a provisional offer was about to be made to her, and having provided all the further documents as would permit that provisional offer, she legitimately expected the offer to be forthcoming.

207.  That really seems to me to be just a slightly different way of formulating the main complaint, I did add little if anything to the main complaint.

O.  Reasons, Delay and Privacy

208.  As to the Applicant’s complaint as to the reasons given for the Decision, there is some force in her point that it took some considerable time to be told any reason why there had been a volte-face on the expected provisional offer.  But, a recent was ultimately given, and the real point seems to me to be the mis-match between the reason given to the Applicant and the reasons which Mr Lam has given as to why she made the Decision.

209.  As to the complaint of delay, it rests upon the idea that there was a failure to have complied with the 10-day performance pledge.  I do not think this adds anything to the relevant analysis.

210.  As to the complaint about an interference with her data privacy rights, the Applicant says that it was inappropriate and in breach of the data privacy rules that her personal information was provided from one part of the EDB to another (for example, to enable the GSS to make the telephone call warning school principals about her).  I do not think there is much in this complaint, not least where the passage of information was within the one department/bureau of the EDB, albeit that the EDB has several sections with separate and sometimes overlapping roles.

P.  Relief

211.  Having found grounds for review, it remains to consider what relief, if any, to give in the exercise of discretion.

212.  The Applicant seeks an order of certiorari (to quash the Decision), and general damages, mainly in the form of compensation for lost income and benefits, and also to include emotional distress damages.

213.  Ms Chan submits that the quashing of the Decision would not, of course, result in issuance of a provisional offer to the Applicant.  Rather, the quashing of the Decision would simply trigger a renewed discretionary exercise on the part of the EDB, where Mr Lam has identified that the likely outcome would remain the same.  Therefore, she says an order of certiorari is inapt or pointless.

214.  But, first, that submission ignores the effect of the passage of time since the Decision.  Whilst it is obviously correct that the Applicant could not now be offered the NET post for the academic year 2021/22 (because that is almost over), even on a reconsideration, it seems to me that a finding that there has been a breach of public law ought to lead to the quashing of the Decision.  Secondly, it is also important to make clear as to the lawful way to deal with the Applicant in her applications for employment in the coming academic year 2022/23, and thereafter.

215.  As to damages, I think that the Applicant is entitled to an assessment of damages.  I will conduct that assessment on paper submissions.  The Applicant shall file her submissions as to the quantum of damages within 21 days, and the EDB shall file its response within 21 days thereafter.  The Applicant may file any reply submissions within 14 days thereafter.

216.  As to costs, the Applicant acts in person, so she has incurred no legal costs, though she has incurred court fees for which she seeks reimbursement.  I see no reason why she is not entitled to those costs from the EDB, following the event of these proceedings.

The applicant, acting in person

Ms Jess Chan, Assistant Principal Government Counsel (Ag.), of the Department of Justice, for the 1^st and 2^nd respondents