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803 Funds Ltd v Secretary For Education

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date28 September 2021
Neutral Citation[2021] HKCFI 2874
Judgement NumberHCAL1969/2020
Citation[2021] 4 HKLRD 735
Year2021
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1969A/2020 803 FUNDS LTD v. SECRETARY FOR EDUCATION

HCAL 1969/2020

[2021] HKCFI 2874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1969 OF 2020

________________________

BETWEEN
803 FUNDS LIMITED Applicant
and
SECRETARY FOR EDUCATION Putative
Respondent

________________

Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Court

Date of Hearing: 20 May 2021

Date of Judgment: 28 September 2021

________________________

JUDGMENT

________________________

INTRODUCTION

1. This is an application for judicial review of the decision of the Education Bureau (“EDB”) dated 3 July 2020 (“the Final Decision”) upon review of its earlier decision dated 25 March 2020 refusing to disclose to the Applicant the “Withheld Information”, which is defined in §9 of the Form 86 to mean “the names of the schools and the teachers involved and the findings and results of investigation in the substantiated cases” of professional misconduct of teachers. For reasons which I shall endeavour to explain in this judgment, I find against the Applicant in this application.

BASIC FACTS

(i) Complaints against teachers received by EDB and complaint handling process

2. EDB is the teacher registration authority under the Education Ordinance, Cap 279 (“the EO”), and is responsible for investigating complaints of professional misconduct against teachers and taking appropriate follow-up actions in substantiated cases of professional misconduct.

3. When EDB receives a complaint of professional misconduct against a teacher, it would request the relevant school to conduct investigation into the alleged professional misconduct and submit its investigation report to EDB. In conducting investigation, it is common that the school would interview the teacher involved to find out the relevant facts, and allow the teacher an opportunity to make representations in response to the complaint.

4. In the course of the complaint handling process, EDB would also invite the teacher involved to make written representations. In doing so, it is specified in the invitation letter that the purpose of collecting the information is to enable the Permanent Secretary for Education (“the Permanent Secretary”) to consider the appropriate follow-up action. The invitation letter contains a standard paragraph stating as follows:

“You are invited to provide, in written form, information/explanation that you would wish the Permanent Secretary for Education, the teacher registration authority under the Education Ordinance (Cap 279), to take into account when considering taking disciplinary action against you in relation to your misconduct as revealed in our investigations”.

5. EDB considers that there is a mutual understanding between the school / teacher involved and EDB that the information collected during the complaint handling process would be used solely for the purpose of investigation into the alleged misconduct of the teacher and consideration of the appropriate follow-up action, if any, to be taken by EDB, and the information so collected would not be disclosed to any third party unless required by law or under a court order.

6. From June 2019 to March 2020, EDB received a total of 192 complaints of suspected professional misconduct of teachers relating to the social events arising out of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill”). Of the 192 complaints, 39 cases were substantiated. For those substantiated cases, EDB issued reprimand letters to 13 teachers, warning letters to 4 teachers, advisory letters to 9 teachers, and verbal reminders to 13 teachers.

7. There was no standard complaint form for the public to lodge complaints against teachers. In most of the 39 substantiated cases, the names of the schools and teachers involved were specified. For other cases, if only the names of the teachers were specified, EDB would check against its internal records to identify the schools involved. On the other hand, if only the names of the schools were specified, EDB would invite the schools concerned to identify the teachers involved[1].

8. In reaching its findings and results in the 39 substantiated cases, EDB collected information from (i) the complainants, (ii) the schools involved, and (iii) the teachers concerned. Hence, its findings and results in the 39 substantiated cases would be based on and/or contain information provided by one or more of these three sources.

(ii) The Applicant’s request for information

9. The Applicant, incorporated in 2019, is a company limited by guarantee. The object of the Applicant, as stated in paragraph 4 of Part A (Mandatory Articles) of its Articles of Association, is “for the organisation and carrying out of activities to promote law and order and civic-minded activities, on a non-profit-making basis”[2].

10. On 4 February 2020, Sit, Fung, Kwong & Shum (“SFKS”), on behalf of the Applicant, made a request under the Code on Access to Information (“the Code”) to EDB for information relating to substantiated cases of professional misconduct of teachers (“the Request”). The letter stated, inter alia, as follows:

“It has recently come to our client’s attention that some teachers in Hong Kong were alleged to have been involved in misconduct. Our client learnt from the news and found it worrying that more than 60 teachers and teaching assistants were arrested and/or charged for various offences in the recent social unrest and that the Education Bureau had, between the mid of June to early November, launched over a hundred of preliminary investigations into alleged breaches of professional ethics, 60 cases of which had been completed with around half of them preliminarily found to be substantiated. Our client understands that the Education Bureau is following up on these cases and it will consider the necessary disciplinary actions to be taken in accordance with the law.

Our client is deeply concerned about the alleged misconduct of teachers, who are expected to be law-abiding citizens and role models for our future generations, and their potential adverse influence on students. In our client’s view, allegations substantiated upon investigation cast serious doubt about the propriety of the teachers concerned and whether they remain fit and proper to teach at schools. Our client considers that members of the public, particularly parents of local students, have a vital interest in accessing relevant information relating to those teachers in order to make an informed decision as to whether their children shall study or continue to study in a particular school. It is our client’s position that, balancing the seriousness and graveness of the potential harm to students and the alleged misdeed of the teachers concerned, together with all other relevant circumstances, the public interest warrants the disclosure of such information by the Education Bureau, which has a duty to safeguard the interests and well-being of students in Hong Kong.

In the circumstances, we are instructed to hereby request pursuant to the Code for relevant information in relation to the aforesaid substantiated misconduct cases with particulars including but not limited to the following, to the extent permitted by the Code and all applicable laws:

1 the number of such substantiated cases;

2 the schools and the teachers involved;

3 the nature of the relevant misconduct and/or breaches of professional ethics;

4 the findings and results of investigation in such substantiated cases; and

5 the follow-up actions to be taken by the Education Bureau.”

11. By letter dated 25 March 2020, EDB provided to SFKS part of the information sought (namely, items 1, 3 and 5 referred to in SFKS’s letter of 4 February 2020), including the following:

(1) Since June 2019, EDB had completed investigations and taken follow-up actions regarding 39 substantiated cases of teachers’ professional misconduct relating to the recent social incidents. The majority of those cases related to “making inappropriate remarks that invoke hostility or malice and the use of impolite or offensive language by teachers”.

(2) Of the 39 substantiated cases, EDB had issued 13 reprimand letters and 4 warning letters to the teachers concerned, warning them that cancellation of registration as teacher under the EO might be considered if they misconducted themselves again. ED had also issued 9 advisory letters and 13 verbal reminders, reminding the teachers concerned to refrain from activities that were detrimental to the image of the teaching profession and to follow behavioral norms acceptable to society.

12. EDB was not, however, prepared to provide information relating to the names of the schools and teachers involved and the findings and results of investigation in the 39 substantiated cases (to the extent that the Request was for specific information in each such case) (“the Initial Decision”), by reason of §§2.14(a) and 2.15 of Part 2 of the Code, which provide that certain types of information could be withheld from disclosure:

(1) §2.14(a) of the Code -

“Information held for, or provided by, a third party under an explicit or implicit understanding that it would not be further disclosed. However, such information may be disclosed with the third party’s consent, or if the public interest outweighs any harm or prejudice that would result.”

(2) §2.15 of the Code -

“Information about any person (including a deceased person) other than to the subject of the information, or other appropriate person, unless -

a. such disclosure is consistent with the purposes for which the information was collected, or

b. the subject...

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