教學語文司法覆核最新情況

網頁編者按:有關中大教學語文問題的司法覆核將於113日在高等法院審理,審期估計三天。

司法覆核由在校學生李耀基(政政系三年級)提出,得到法律援助處接納,將由張健利大律師代表,中大校方則從英國請來一位大律師代表出庭。在12月底,學生方面在代表律師協助下,修改了86A表格,此表格內容為司法覆核中申訴一方向法庭要求處理的事項,修改後的86A表格已送交法庭並得到接受,經此修改,學生主要要求法庭作出以下判決:

1.       頒下指令,宣布《中文大學條例》弁言中有關中大的主要教學語言為中文的條文有法律約束力,中大今後在制定教學語文政策時必須遵從;

2.      中大教務會在2007109日接納雙語政策委員會最後報告書的決定無效;

3.      中大教務會在同一會議中成立優化雙語教育委員會的決定無效。

以下為修改後的86A表格全文。

(上網日期:2009112日)

 

 

FORM 86A

LA/MJR/00890/2007(P66)

HCAL 5 of 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 5 OF 2008

—————

LI YIU KEE                                                    Applicant

 

IN THE MATTER of an Application by LI YIU KEE for Leave to Apply for Judicial Review pursuant to Order 53, rule 3 of the Rules of the High Court, Cap. 4A

 

And

 

IN THE MATTER of The Chinese University of Hong Kong Ordinance, Cap. 1109

 

_________________________________________________________________

 

AMENDED-NOTICE OF APPLICATION FOR LEAVE

TO APPLY FOR JUDICIAL REVIEW (O.53 r.3)

 

 

This form must be read together with the Notes for Guidance obtainable from the Registry.

 

 

To the Registrar, High Court, Hong Kong Special Administrative Region.

 

 

 

Name, address and description of Applicant

 

Mr. Li Yiu Kee, c/o 9/F, Waitex House, 7-9 Mongkok Road, Kowloon, Hong Kong, a Hong Kong permanent resident and a student of the Chinese University of Hong Kong.

 

Judgement, Order, Decision or other Proceeding in respect of which relief is sought

 

(1)     The decision of the Senate of the Chinese University of Hong Kong in the Senate meeting on 9th October 2007 to implement the Report of the Committee on Bilingualism recommending the approval of the policy of language of instruction.

 

(2)    The decision of the Senate of the Chinese University of Hong Kong in the Senate meeting on 9th October 2007 to approve the establishment of the Senate Committee on Language Enhancement insofar as to implement the policy of language of instruction recommended by the Report of the Committee on Bilingualism.

 


AMENDED-RELIEF SOUGHT

 

1.      A declaration that the Senate of the Chinese University of Hong Kong (“CUHK”), when formulating policy in relation to instruction and education or otherwise exercising its powers and performing its functions and duties under Section 8(a) of the Chinese University of Hong Kong Ordinance (“the CUHKO”) is, on its true construction, legally required to uphold and implement the principle stated in the Preamble of the CUHKO that “the principal language of instruction shall be Chinese” (“the Principle”);

 

2.      1. A declaration that the policy of language of instruction (“the Policy of Language of Instruction”) recommended by the Report of the Committee on Bilingualism (“the Report”) and implemented by the Senate of the CUHK in the Senate meeting on 9th October 2007 is unlawful and/or unreasonable to the extent that it is inconsistent with the Principle and/or results in the principal language of instruction at the CUHK becoming English and not Chinese or alternatively in English being accorded equal status with Chinese as a language of instruction, and is thereby inconsistent/in conflict with the policy and objects of the CUHKO, in particular Section 8(a) of the CUHKO when read in conjunction with the Preamble of the CUHKO;

 

3. 2. Further or alternatively, an order of certiorari to bring up and quash the decision of the Senate of the CUHK in the Senate meeting on 9th October 2007 to implement the Report of the Committee on Bilingualism recommending the approval of the policy of language of instruction;

 

4. 3. Further or alternatively, an order of certiorari to bring up and quash the decision of the Senate of the CUHK in the Senate meeting on 9th October 2007 to approve the establishment of the Senate Committee on Language Enhancement insofar as to implement the policy of language of instruction recommended by the Report of the Committee on Bilingualism;

 

5. 4. Leave to extend the period within which this application shall be made under Order 53 r.4;

 

6. 5. A hearing of this application under Order 53, rule 3(3) of the Rules of the High Court, Cap. 4A if leave is not granted on the papers;

 

7. 6. If leave is granted, an expedited hearing of this Application;

 

8. 7. Such further and other relief as the court may provide; and

 

9. 8. An order for costs.

 

 

Name and Address of   

Applicants’ solicitors

Tang, Wong & Chow

22nd  Floor, Henan Building,

No. 90 Jaffe Road,

Wan Chai, Hong Kong

 

 

 

Signed         (s.d.)                  Dated      18th January 2008

                                        Dated     22nd December 2008

________________________________________________________________________


GROUNDS ON WHICH RELIEF IS SOUGHT

(If there has been any delay, include reasons here)

 

I.      FACTUAL BACKGROUND & CHRONOLOGY

The Applicant

1.           The Applicant, Mr. Li Yiu Kee, is an undergraduate student of the Department of Government and Public Administration of the Chinese University of Hong Kong (“the CUHK”). He started his studies in the CUHK in 2005 and is currently in the third year of his course. At present, he is the Secretary General of the Hong Kong Federation of Students. He is also the former External Vice President of the Student Union of the CUHK.

 

2.          The language of instruction of the CUHK has been one of the Applicant’s top concerns since the beginning of his studies there. He is worried that there will be a reduction in the number of courses using Chinese as the language of instruction at the CUHK. He is also of the view that, under the policy of language of instruction as stated in the Report of the Committee on Bilingualism (“the Report”), Chinese is no longer the principal medium of instruction at the CUHK.

 

The Establishment of The Chinese University of Hong Kong[1]

3.          Before the CUHK was established, the University of Hong Kong was the only government-supported university in Hong Kong in which English was used as the official language and medium of instruction.

 

4.          On 2nd June 1959, the Hong Kong Government officially announced that it was prepared to establish a new university with Chinese as the main medium of instruction.][2] The Hong Kong Government’s decision was in response to the request from New Asia College, Chung Chi College and the United College (also known as the original Colleges after the establishment of the CUHK) for recognition and the constant demand from the community for a further provision of tertiary education, in particular when the way for Chinese middle school graduates to return to China for tertiary education was blocked as a result of a change of government in China.

 

5.          In March 1960, a report entitled “The Development of Post Secondary Colleges in Hong Kong” by Mr. John Fulton (later Lord Fulton of Falmer) was submitted to the Governor. The Fulton Report was accepted as a blueprint for the new university. It was stated in the Fulton Report that: “… on many occasions it was said that the new university, teaching through the medium of Chinese, would owe its qualities not only to its roots in Chinese scholarship, but also to the traditions of Western universities. …” (emphasis added)

 

The Chinese University of Hong Kong Ordinance

6.          The CUHK was established in 1963 by virtue of the Chinese University of Hong Kong Ordinance 1963.

 

7.           During the first reading of the Chinese University of Hong Kong Bill 1963 in the Legislative Council on 21st August 1963, the Colonial Secretary stated:

“… the introduction of this Bill into Legislative Council marks one of the more important stages in the journey towards the creation of a Chinese University in Hong Kong

 

… It was in 1959 that the evident progress which [New Asia College, Chung Chi College and the United College] had made gave promise of the realization, in due course, of a new university in which Chinese would be the principal medium of instruction. …” (emphasis added)

 

8.          The “Objects and Reasons” for the Chinese University of Hong Kong Bill were stated as follows:

“The Report of the Fulton Commission, 1963, recommended the establishment of a Federal-type Chinese University in which the principal language of instruction should be Chinese. The Report included a draft Bill and Statutes, which were modelled in part on the University Ordinance, 1958 and the Statutes contained in the Schedule thereto.” (emphasis added)

 

9.          It was stated in the Preamble that:

“Whereas it is desirable to establish a University with a federal constitution in which the principal language of instruction shall be Chinese-

(a)      to assist in the preservation, dissemination, communication and increase of knowledge;

(b)      to provide with the Colleges regular courses of instruction in the humanities, the sciences and other branches of learning of a standard required and expected of a University of the highest standing; 

(c) to stimulate the intellectual and cultural development of Hong Kong and thereby to assist in promoting its economic and social welfare:” (emphasis added)

 

10.       The Chinese University of Hong Kong Bill was passed into law and became effective on 18th September 1963.

 

11.        Shortly afterwards, on 17th October 1963, the CUHK was officially inaugurated.

 

12.       In 1976, a number of amendments were made to the Chinese University of Hong Kong Ordinance 1963, which became largely identical to The Chinese University of Hong Kong Ordinance, Cap. 1109 (“the CUHKO”) that is currently in force. By the amendments in 1976, all powers and functions of the governing of the CUHK and the Colleges were vested in the University Council and Senate.

 

13.       The provision that the principal language of instruction shall be Chinese was preserved. Other parts of the Preamble were amended to become the following provisions:

“WHEREAS-

(a) The Chinese University of Hong Kong was established and incorporated in 1963 by The Chinese University of Hong Kong Ordinance as a University with a federal constitution;

(b) the constituent Colleges of the University are Chung Chi College, New Asia College and The United College of Hong Kong;

(c) it is considered desirable that some of the powers and functions conferred on the said Colleges under their respective constitutions and Ordinances should be vested in The Chinese University of Hong Kong and that the principal role of the said Colleges be the provision of student-orientated teaching under the direction of The Chinese University of Hong Kong;

(d) it is also considered desirable to make certain alterations in the constitution of The Chinese University of Hong Kong;

(e) it is declared that The Chinese University of Hong Kong, in which the principal language of instruction shall be Chinese, shall continue to-

(i) assist in the preservation, dissemination, communication and increase in knowledge;

(ii) provide regular courses of instruction in the humanities, the sciences and other branches of learning of a standard required and expected of a University of the highest standing;

(iii) stimulate the intellectual and cultural development of Hong Kong and thereby to assist in promoting its economic and social welfare:” (emphasis added)

 

14.       During the Committee Stage of the passage of the Chinese University of Hong Kong Bill 1976 on 22nd December 1976, the Legislative Council member Dr. The Honourable Henry Hu Hung-lick stated:

The Preamble provides the Colleges with a meaningful and beneficial role to play in the future development of the University. …

 

15.       Even though other parts of the Preamble of the CUHKO were further amended in 1986 and 2007 to include Shaw College, Morningside College and S. H. Ho College into the constituent Colleges of the CUHK, the provision under the Preamble concerning the principal language of instruction was preserved.

 

Increasing Use of English as Language of Instruction at the CUHK

16.       It appears that, at least until 2005, there was no unified measure taken by the CUHK to regulate or control the language of instruction.

 

17.        On 4 January 2005, Professor Kenneth Young, Pro-Vice-Chancellor of CUHK, wrote to all the chairs of the Departments and Directors of Undergraduate Programmes at CUHK. In his letter, he stated the following as regards CUHK’s current policy on the language of instruction: 

5. … CUHK has always adopted a bilingual policy; within that policy, The fundamental principle for all programmes is the same: the academic environment should be bilingual and the intake of international undergraduate students must be planned within this framework.

 

6. There is no simple uniform answer to the optimal language of instruction that would apply to all departments, all programmes or all course. Not every department/programme need to accept international students, and those that are prepared to do so need not offer every course in English, the only requirements being as follows.

(a)    All lectures in required courses are offered in English. (If several parallel sections are available, then at least one section is conducted in English.)

(b)    For required courses, at least one section of every tutorial, exercise or laboratory section is conducted principally in English.

(c)     Sufficient (but not necessarily all) elective courses are offered in English, to enable students to fulfil the programme requirements.

(d)    All examination for courses taught in English must have an English version.

 

It is up to each Department/Programme Board to decide whether or not to opt for the admission of international students.… (emphasis added)

 

18.       In a table entitled “international student recruitment 2005” prepared by the CUHK, 37 out of 44 programmes run at the CUHK participated in international student recruitment in 2005. Only 7 programmes had indicated that they would not commit to providing sufficient courses taught in English for fulfilling the major requirements for international student recruitment in 2005.

 

19.       In 2006, among the views collected by the Committee on Bilingualism (“the Committee”) of the CUHK, it was revealed that at least, Science and Engineering subjects][3], Faculty of Medicine][4], School of Law][5], School of Journalism and Communication][6] and most Social Science programmes in the Graduate School mainly used English as the language of instruction.][7]

 

20.      For the 2007/2008 academic year][8], a total of 4,180 undergraduate courses were offered by the CUHK. They include courses offered by faculties, departments and schools, general education programmes run by the CUHK or the constituent Colleges, language programmes and physical education programmes. Only 26.44% of these courses are conducted in “Cantonese/Putonghua only”. 45.07% of the courses are conducted in “English only”. In 19.69% of these courses, both Cantonese/Putonghua and English are used. In 4.21% of these courses, the medium of instruction is “Cantonese/Putonghua, but [it] will change to English when there is any student who does not know Cantonese/Putonghua”.

 

21.       Furthermore, for courses that are offered by faculties, departments and schools, only 21.08% of them are conducted in Cantonese/Putonghua only, while 51.16% of them are conducted in “English only”. Both Cantonese/Putonghua and English are used in 15.33% of these courses. In 5.75% of these courses, the medium of instruction is “Cantonese/Putonghua, but [it] will change to English when there is any student who does not know Cantonese/Putonghua”.

 

Report of the Committee on Bilingualism (“The Report”)

Background of the Report

22.      In late February 2005, the CUHK established the Committee.

 

23.      It was stated in the Report’s terms of reference that:

With a view to upholding the University’s founding philosophy of placing equal emphasis on Chinese and English, and to strengthening, improving and promoting its unique tradition of bilingual education, in response to the trend towards diversification and internationalisation in Hong Kong’s higher education sector, the Committee on Bilingualism will review and make recommendations on how CUHK can continue to uphold and further implement its policy on bilingualism. … and will submit its report to the Vice-Chancellor with recommendations on long-range planning.”][9] (emphasis added)

 

24.      The Committee contended that the bilingual policy of liangwen sanyu (兩文三語) (i.e. two written languages and three spoken codes) has been implemented at the CUHK for more than four decades, and that language of instruction is an important aspect of the CUHK’s bilingual education policy.][10]

 

25.      The Committee issued a draft report on 7 September 2006 and conducted consultations with teachers, staff, students and alumni of the CUHK. After revising the draft report, the Report was adopted and published by the Committee on 16 July 2007. Subsequently, on 12 September 2007, Professor Lawrence J. Lau, the Vice-Chancellor (“Professor Lawrence Lau”) issued a letter to the members of the Senate to give his full endorsement to the Report.

 

The Content of the Report

26.      According to the Report, it is the CUHK’s policy that the two written languages and the three spoken codes (liangwen sauyu) serve the distinct functions of being languages of academic inquiry and instruction at the CUHK. The Report stated at paragraph 9 that, [a]s society evolves, the functions of liangwen sanyu will change, and the relative weight of each language as a medium of instruction will also need to be adjusted accordingly.” (emphasis added)

 

27.       At paragraphs 3.3 and 7.3, the Report stated that “[t]he Committee is of the view that the relevant part of the Preamble concerning the language of instruction should be interpreted in its historical context… .

 

28.      The Report also indicated that:

“13. The choice of language of instruction should be based upon the following factors: the nature of individual academic subjects; the language currently used as the predominant medium for academic expression and publication in the subjects concerned (e.g., the language used in teaching materials, academic journals and proceedings of international conferences); the requirements for professional qualifications and teaching and learning effectiveness; the language habits, linguistic competence and cultural background of both students and teachers; as well as CUHK’s commitment to caring for the Chinese language. To achieve optimal pedagogical results, the language of instruction in individual subjects should be set by the Boards of Departments concerned, with reference to the above factors.”(emphasis added)

 

The Policy of Language of Instruction Recommended by the Report (“the Policy of Language of Instruction”)

29.      Paragraph 14 of the Report stated that, depending on the nature of the academic subject, the language used at lectures should be set by the Boards of various departments according to the following principles:

“14.1 For courses that are highly universal in nature, with little emphasis on cultural specificity, and have English as the predominant medium for academic expression and publication (such as courses in the natural sciences, life sciences and engineering sciences), English should be the preferred language for lectures so as to facilitate direct and accurate articulation of concepts, and to be in line with international practice.][11]

 

14.2 For courses that emphasize cultural specificity and have Chinese as the predominant medium for academic expression and publication (especially courses in Chinese culture, society and history), or courses that are related to philosophy of life, Chinese (Cantonese or Putonghua) should be the preferred language for lectures. The proportion of courses taught in Putonghua may be increased according to actual need.

 

14.3 For courses that emphasize cultural specificity and have both Chinese and English as primary media for academic expression and publication (in particular, some of the courses in the social sciences and the humanities), either Chinese (Cantonese or Putonghua) or English may be used as the language for lectures.

 

14.4 For courses that are related to local society, politics and culture, Cantonese should be the preferred language for lectures, so as to preserve and nurture the indigenous language, and to promote the socio-cultural development of Hong Kong.

 

15. Under special circumstances, the Boards of Departments may exercise flexibility in deciding on the language for lectures. Such a decision should be made only after the Board has given due consideration both to the above principles and to such factors as the language habits, the linguistic competence and the cultural background of the students and teachers, and has consulted the teachers concerned.

 

16. In addition, for academic subjects leading to professional qualifications (such as medicine, Chinese medicine, law, accountancy, engineering and architecture), the choice of appropriate language for lectures should be subject to relevant professional requirements.

 

17. General Education (GE) has been a distinctive feature of the CUHK tradition. GE courses will normally be taught in Chinese (Cantonese or Putonghua). For each area of the GE curriculum, courses in English should be offered for non-Chinese-speaking students or other students interested in taking such courses. For GE courses related to Western civilization or subjects that are highly universal in nature, lectures may be conducted in English.”(emphasis added)

 

30.      Meanwhile, the Committee recommended the establishment of the Committee on Language Enhancement under the Senate to coordinate, review, improve and promote the policy on bilingual education at CUHK.

 

No Recommendation by the Committee to Amend the Preamble despite Conflict between the Policy of Language of Instruction and the Preamble

31.       During the Nineteenth Meeting of the Committee on 29 June 2006, the Committee considered whether it was necessary to amend the provision  in the Preamble which states that “the principal language of instruction shall be Chinese”. The Chairman requested a vote by the show of hands. Among the members who had expressed their views, eight were for amending the Preamble and four were against.

 

32.      Members of the Committee shared their opinions with the Committee as follows:

12(a)(i)… The University should amend the Preamble to avoid possible lawsuits or judiciary reviews that might hinder the implementation of the recommendations of the Report.

 

(ii) It was recommended in the Report that subjects of a universal nature should in principle to be taught in English. Subjects of a universal nature were expected to gradually outnumber those in other categories, resulting in an increase in the proportion of English-medium courses which would eventually be in conflict with the Preamble. In anticipation of this, it was advisable to amend the Preamble in advance.

 

                 …

 

(iv) For the benefit of the students and University, internationalisation was undoubtedly a goal of CUHK’s long-term development. Should the description ‘the principal language of instruction shall be Chinese’ remain unchanged, the international image of the CUHK would be adversely affected. Consideration might be given to seeking legal advice on amending the description to ‘the principal languages of instruction shall be Chinese and English.’

 

(v) … For the sake of CUHK’s long-term development, the Preamble should be amended so that the University needed not be confined by these wordings and their different interpretations.” (emphasis added)

 

33.      After lengthy discussions, the Committee concluded that it was not within its remit to determine whether or not the Preamble would be amended. The Committee took the view that, should there be any conflict between the CUHK's policy on bilingualism and the Preamble that hindered the implementation of the policy on bilingualism, the CUHK might consider an amendment to the Preamble. However, it stated that the overall impact on the CUHK should be weighed before deciding on whether to amend the Preamble.][12]

 

The Decisions

34.      The Report was presented to the Senate on 9 October 2007. The Senate received (“接納”) the Report and approved the establishment of the Senate Committee on Language Enhancement to implement inter alia the Policy of Language of Instruction recommended by the Report.

 

35.      In an article entitled “中英文教學比例,中大拒公開” (“The CUHK refuses to publicise the respective proportions of courses which use Chinese and those which use English as the language of instruction”) which appeared in the Hong Kong Economic Times dated 10 October 2007, it was reported that, at the Senate Meeting of CUHK, Professor Lawrence Lau refused to provide information regarding the respective proportions of courses which use Chinese and those which use English as the language of instruction at the Senate Meeting by reason of “administrative complication.”

 

36.      Meanwhile, prior to the Decisions, by a letter dated 5 October 2007, the Chinese University Alumni Concern Group requested Professor Lawrence Lau and members of the Senate to provide inter alia the figures in respect of the language of instruction in various faculties, departments and schools after the implementation of the Policy of Language of Instruction on a regular basis.

 

37.       By a letter dated 9 October 2007, Professor Lawrence Lau informed the Chinese University Alumni Concern Group that the language of instruction of the courses provided by various faculties, departments and schools was determined by the Boards of various departments and was information open to the public. He went on to state that, since the methods of instruction at the CUHK were not limited to lecturing, and also included tutorials, research on selected topics, class reports, experiments, internships, clinical and individual instruction and so on, it was not feasible to quantify the respective proportions of courses which use English and those which use Chinese for teaching. However, Professor Lawrence Lau added that, according to his knowledge, more than half of the courses were using Chinese as language of instruction.

 

38.      Professor Lawrence Lau further stated that a two-year study was conducted before the Report was published and academic staff, students and alumni of CUHK were consulted on it. He opined that the Report’s content was solid, covered discussions of various topics, was self-contained and beyond any doubt.

 

II.     LEGAL CONTEXT

39.      The Preamble of the CUHKO stated:

“WHEREAS-

(a)  The Chinese University of Hong Kong was established and incorporated in 1963 by The Chinese University of Hong Kong Ordinance (Cap 1109 1965 Ed.) as a University with a federal constitution;

(b)  the original Colleges of the University are Chung Chi College, New Asia College and The United College of Hong Kong;

(c)   it is considered desirable that some of the powers and functions conferred on the said Colleges under their respective constitutions and Ordinances should be vested in The Chinese University of Hong Kong and that the principal role of the said Colleges be the provision of student-orientated teaching under the direction of The Chinese University of Hong Kong;

(d)  it is also considered desirable to make certain alterations in the constitution of The Chinese University of Hong Kong;

(da) the Council of the University has, by special resolutions, resolved that Shaw College, Morningside College and S. H. Ho College shall be constituent Colleges  of the University;

(e)  it is declared that The Chinese University of Hong Kong, in which the principal language of instruction shall be Chinese, shall continue to-

(i)       assist in the preservation, dissemination, communication and increase in knowledge;

(ii)     provide regular courses of instruction in the humanities, the sciences and other branches of learning of a standard required and expected of a University of the highest standing;

(iii) stimulate the intellectual and cultural development of Hong Kong and thereby to assist in promoting its economic and social welfare:” (emphasis added)

 

40.     Section 6 of the CUHKO provided that there shall be a Council, Senate and a Convocation.

 

41.       Section 8 of the CUHKO stated that:

“Subject to this Ordinance and the Statutes and subject also to review by the Council, the Senate shall have the control and regulation of —

(a)   instruction, education and research; …”

 

41A. Section 13 of the CUHKO stated:

(1) The Council may by special resolution make Statutes,
 subject to the approval thereof by the Chancellor,
prescribing or providing for-

(j)  the exercise of any function by the University, the Council, the Senate,
 the Chancellor, the Pro-Chancellor, the Vice- Chancellor,
the Pro-Vice-Chancellors, other officers, teachers and other members;

… .

(2) The Statutes contained in Schedule 1 shall have effect as if made and approved under subsection (1).

 

42.      Under Statute 14 of the Statutes of the CUHK in Schedule 1 to the CUHKO, it was stated in paragraph 4(c) that, subject to the Ordinance and Statutes, the Senate shall have the powers and duties to direct and regulate the instruction and teaching in approved courses of study.

 

III.    STANDING

43.      The Applicant is an undergraduate student of the CUHK. A policy affecting the language of instruction of the courses provided by the CUHK would impact upon the Applicant’s learning environment and the manner in which he gains knowledge in the CUHK. He clearly has sufficient interest in the subject matters of this Application to satisfy the requirements of Order 53, rule 3(7) of the Rules of the High Court, Cap. 4A (“RHC”).

 

 

IV.  DELAY

44.     The Decisions were made on 9 October 2007. An extension of time is required under O.53 r. 4(1) RHC.

 

45.      There are good reasons for extending time.

 

46.      On 9 October 2007, the Applicant began to seek further information in respect of the discussions and deliberations of the Senate Meeting. However, the minutes of the Senate Meeting were then not yet available to him.

 

47.      It was only until about 24 October 2007, a letter from the Secretary to the Senate Committee on Language Enhancement to Student Members of the Senate had come to the Applicant’s notice. It was stated that: “The Senate at its 1st meeting (2007-2008) held on 9 October 2007 approved the establishment of a Senate Committee on Language Enhancement to implement the various language policies and enhancement initiatives that were recommended in the Report of the Committee on Bilingualism.” It was the first occasion on which this information was acknowledged by an official source.

 

48.      During the period from about 24 October 2007 to 6 December 2007, the Applicant carried out research on the language policy of CUHK. He also contacted alumni who worked in the legal profession and sought their legal opinion on the possibility of challenging the Decisions by way of judicial review.

 

49.      On 6 December 2007, the Applicant applied for legal aid

 

50.      By a legal aid certificate dated 8 January 2008, legal aid was granted to the Applicant. On the same day, the Applicant’s solicitors were assigned to represent him and they immediately studied the case of the Applicant and prepared the relevant documents for the application for judicial review.

 

51.       On 9 January 2008, counsel was assigned by the Notice of Assignment of Counsel.

 

52.      Upon the advice of Counsel, further necessary information and documents were obtained from the Applicant. When that was carried out, the legal team immediately prepared the present Form 86A without delay.

 

53.      Even though the date for filing the present application exceeds the three-month time limit for the application for leave for judicial review, there has been no delay on the part of the Applicant. Every step has been taken promptly.

 

54.      Furthermore, the possibility of a judicial review challenge towards the Decisions had been contemplated by CUHK since the making of the Decisions. In an article appearing in the newspaper, Ta Kung Pao, dated 7 December 2007, it was reported that, in response to the Applicant’s application for legal aid on 6 December 2007, the spokesperson of CUHK stated that CUHK would not make any comments as judicial review proceedings have already commenced][13]. In these circumstances, the delay causes no prejudice to CUHK.

 

 

V.    GROUNDS OF REVIEW

1st Ground: ILLEGALITY/UNREASONABLENESS: Adoption of a Policy which is Inconsistent with the Policy and Objects of the CUHKO

55.      One of the policies and objects of the CUHKO is to establish a university in which the principal language of instruction shall be Chinese. This is supported by the Preamble of the CUHKO and the “Objects and Reasons” of the Chinese University Bill 1963 (being the originating provisions of the existing CUHKO) stated in the Hansard dated 21 August 1963. Therefore, it is not open to the CUHK to adopt a policy which is inconsistent or runs contrary to the policy and objects of the CUHKO.

 

55A. According to section 8(a) of the CUHKO, subject to the CUHKO and the Statutes and subject also to review by the Council, the Senate shall have the control and regulation of inter alia, instruction and education within the CUHK. Pursuant to paragraph 4(c) of the Statute 14 of the CUHK, it is inter alia the power and duty of the Senate of the CUHK to direct and regulate the instruction and teaching in approved courses of study. Thus, when the Senate of the CUHK formulates policy in relation to teaching language, it is clearly exercising its statutory powers and performing its functions and duties under section 8(a) of the CUHKO and the Statute of the CUHK.

 

55B. It is submitted that, the Senate of the CUHK, when formulating policy in relation to instruction and education or otherwise exercising its powers and performing its functions and duties under section 8(a) of the CUHKO is, on its true construction, legally required to uphold and implement the principle stated in the Preamble of the CUHKO that “principal language of instruction shall be Chinese.” (“the Principle”).

 

The Policy and Objects of the CUHKO

56.      In Attorney General v. Prince Ernest Augustus of Hanover [1957] A.C. 436 at 465 and 467, it was held (per Lord Normand) that:

In order to discover the intention of Parliament it is proper that the court should read the whole Act, inform itself of the legal context of the Act, including Acts so related to it that they may throw light upon its meaning, and of the factual context, such as the mischief to be remedied, and those circumstances which Parliament had in view…It is the merest commonplace to say that words abstracted from context may be meaningless or misleading.

When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions…(emphasis added)

 

57.       In Town Planning Board v Society for the Protection of the Habour Limited (2004) 7 HKCFAR 1, at paragraph 28, the Court of Final Appeal unanimously approved the above approach, stating as follows:

“28. The interpretation of statutes is of course an essential part of the judicial function and is ultimately a matter for the courts. In interpreting a statute, the function of the courts is to ascertain the intention of the legislature as expressed in the legislation. The statute must be considered as a whole. Any statutory provision must be understood in its context taken in its widest sense: Attorney General v. Prince Ernest Augustus of Hanover [1957] A.C. 436 at 461.” (emphasis added)

 

58.      In West Ham Assessment Committee v Iles (1883) 8 App Cas 386, Lord Blackburn stated at 388-389 that:

“I quite agree with the argument which has been addressed to your Lordships, that in construing an Act of Parliament where the intention of the Legislature is declared by the preamble we are to give effect to that preamble to this extent, namely that it shews us what the Legislature are intending; and if the words of enactment have a meaning which does not go beyond that preamble, or which may come up to the preamble, in either case we prefer that meaning to one shewing an intention of the Legislature which would not answer the purposes of the preamble or which would go beyond them. To that extent only is the preamble material.(emphasis added)

 

59.      It follows that in order to discover the intention of the Legislative Council underlying the enactment of the CUHKO, the Preamble shall be referred to.

 

60.      Upon the reading of the Preamble, it is clear and unequivocal that one of the policies and objects of the CUHKO is that the principal language of instruction shall be Chinese, since:

(1)       the word “shall”, which is of a mandatory nature, is used in the Preamble;

 

(2) paragraph (e) starts with the words “it is declared that”, which denote “a formal statement, proclamation or announcement”][14] by the Legislative Council. Therefore, what is stated in the rest of the paragraph is undoubtedly the intention of the legislature; and

 

(3) In paragraph (e), the three roles stated in sub-paragraphs (e)(i) to (iii) are linked together by the phrase “… in which the principal language of instruction shall be Chinese…”. The fulfilment of these three roles is of a continuing nature because the phrase “… shall continue to…” is used. By implication, the requirement that “the principal language of instruction shall be Chinese” should not merely reflect the historical context, but rather, an ongoing obligation.

 

Principal Language of Instruction

61.       According to the Shorter Oxford English Dictionary (5th edition), “principal” means “first or highest in rank, most important, foremost, greatest”. It is also defined as “relatively or especially great or important; special, eminent.”

 

62.      The meaning of “principal” was also considered in other contexts. For example, in The “Reiwa” [1991] 2 Lloyds Rep 325, the word “principal” was held to mean “chief” and “most important”; in Equality Authority v Portmarnock Golf Club and others, [2005] IEHC 235, “principal” was held to mean “first in importance.”

 

63.      Although it is open to CUHK to adopt a bilingual policy, which involves the use of other languages including English as one of the languages of instruction, it is not the policy and objects of the CUHKO to give Chinese and English equal status as the languages of instruction. Chinese shall be given the “most important” status and ranks “first in importance”. It follows that Chinese should have precedence over English as the language of instruction at CUHK.

 

 

Law on Illegality/Unreasonableness

64.      It is illegal and/or unreasonable for a public authority to adopt a policy that is inconsistent and/or in conflict with the policy and objects of an ordinance.

 

65.      In Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997, it was held by Lord Reid at 1030 B-D that:

Parliament must have conferred the discretion with the intention that it should be used to promote the policy and object of the Act; the policy and objects of the Act must be determined by constructing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. (emphasis added)

 

66.      Lord Pearce further held at 1054 G that it was for the Minister to use his discretion to promote Parliament’s intention.(emphasis added)

 

 

The Policy of Language of Instruction is Inconsistent/In Conflict with the Policy and Objects of the CUHKO

67.       The Policy of Language of Instruction is inconsistent/in conflict with the policy and objects of the CUHKO for the following reasons:

 

(1) The Policy of Language of Instruction is based upon the apprehension that it is “the University’s founding philosophy [to place] equal emphasis on Chinese and English”][15]. However, this is wrong and runs contrary to the policy and objects of the CUHKO;

 

(2) The Report stated that “the Preamble concerning the language of instruction should be interpreted in its historical context… (paragraph 9 of the Report)” and that, “[a]s society evolves, the functions of liangwen sanyu will change, and the relative weight of each language as a medium of instruction will also need to be adjusted accordingly” (paragraph 9 of the Report). In effect, CUHK took the view that the principal language requirement was only relevant in 1963 when CUHK was established. It fails to recognise that the principal language of instruction shall still be Chinese and this was laid down as one of the objects of the CUHKO;

 

(3) Paragraph 14.1 of the Report stated that, for courses which “are highly universal in nature” and have English as the predominant medium for academic expression and publication, English, instead of Chinese, became the preferred language for lectures;

 

(4) Furthermore, paragraph 14.3 of the Report stated that, for courses that emphasise cultural specificity and have both Chinese and English as the primary media for academic expression and publication (in particular, some of the courses in social sciences and humanities), CUHK failed to give any priority/preference to Chinese as the language for lectures;

 

(5) The requirement that Chinese should be the preferred language for lectures is only scarcely applied to the following courses:

(i)                     courses which emphasise cultural specificity and have Chinese as the predominant medium for academic expression and publication (paragraph 14.2 of the Report);

(ii)                   courses related to philosophy of life (paragraph 12.2 of the Report); and

(iii)                 courses related to local society, politics and culture (paragraph 14.3 of the Report);

 

(6)    In the circumstances, it is further submitted that the implementation of the Policy of Language of Instruction would result in either (i) the situation described by the preceding paragraphs 19, 20 and 21 remains largely unchanged, or (ii) there will be a further increase in the proportion of courses using English as language of instruction which was contemplated by the members of the Committee][16]. Both leads to the consequence that the principal language of instruction at the CUHK is English and not Chinese.

 

and therefore, this reflects the failure to give effect to the policy and objects of the CUHKO (See paragraphs below under the Second Ground).

 

68.      CUHK has taken an entirely wrong approach to the CUHKO and completely misapprehended the policy and objects of the CUHKO. Thus, the Decisions are both unlawful and unreasonable in the public law sense.

 

2nd Ground: ILLEGALITY/ UNREASONABLENESS: Failure to Take Account of Relevant Consideration and/or Failure to Give Sufficient Weight of Relevant Consideration

69.      If the exercise of a discretionary power has been influenced by the disregard of relevant considerations required to be taken into account, a court will normally hold that the power has not been validly exercised. See: De Smith, Woolf & Jowells, Principles of Judicial Review, (1999, Sweet & Maxwell) p.210. On the other hand, the courts have been willing to strike down as unreasonable decisions where manifestly inadequate weight has been accorded to a relevant consideration. See: De Smith, Woolf & Jowells, p. 456.

 

70.      The policy and objects of the CUHKO that the principal language of instruction shall be Chinese is apparently a consideration which the CUHK should take into account and/or give sufficient weight to when formulating the Policy of Language of Instruction.

 

71.        The Report stated that:

[t]he Committee is of the view that the relevant part of the Preamble concerning the language of instruction should be interpreted in its historical context…” (paragraph 3.3 of the Report).

 

72.       It further stated at paragraph 13 that:

13. The choice of language of instruction should be based upon the following factors: the nature of individual academic subjects; the language currently used as the predominant medium for academic expression and publication in the subjects concerned (e.g., the language used in teaching materials, academic journals and proceedings of international conferences); the requirements for professional qualifications and teaching and learning effectiveness; the language habits, linguistic competence and cultural background of both students and teachers; as well as CUHK’s commitment to caring for the Chinese language.

 

73.       In the factors listed above, there was no mention of the requirement that the principal language of instruction shall be Chinese. When this omission is viewed along with the statement that “the relevant part of the Preamble concerning the language of instruction should be interpreted in its historical context…”, it is apparent that CUHK has elected to ignore the provision in the Preamble which requires that principal language of instruction shall be Chinese.

 

74.      Although the factor of “CUHK’s commitment to caring for the Chinese language” was considered, there is a fine but significant distinction between it and what was stated in the Preamble.

 

75.       “CUHK’s commitment to caring for the Chinese language” is only a general statement showing the aspiration to care for the Chinese language. However, the provision that the principal language of instruction shall be Chinese is a more specific statement and requires the Policy of Language of Instruction to be consistent with it. The fact that the CUHK solely gave consideration to “CUHK’s commitment to caring for the Chinese language” only confirms that it has failed to take into account the requirement that the principal language shall be Chinese and/or failed to give sufficient weight to the same when formulating the Policy of Language of Instruction.

 

Dated the 18th day of January 2008.

Dated the 22nd day of December 2008.

 

 

Denis Chang, S.C.

Jocelyn Leung

Counsel for the Applicant

 

 

 

 


LA/MJR/00890/2007(P66)

HCAL 5 of 2008

 

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

No.5 of 2008

______________________

LI YIU KEE                           Applicant

               

 

IN THE MATTER of an Application by LI YIU KEE for Leave to Apply for Judicial Review pursuant to Order 53, rule 3 of the Rules of the High Court, Cap. 4A

 

And

 

IN THE MATTER of The Chinese University of Hong Kong Ordinance, Cap. 1109

 

 

_______________________________________

 

AMENDED-NOTICE OF APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW (O.53 r.3)

_______________________________________

 

Filed this 18th day of January 2008.

                                                                Filed this 22nd day of December 2008

Tang, Wong & Chow

22nd Floor,

Henan Building,

No. 90 Jaffe Road,

Wan Chai, Hong Kong

 

TEL.: 2529 0383

FAX: 2529 0366

 

 

 

 

 



[1] Report of the Committee on Bilingualism, The Chinese University of Hong Kong, 16 July 2007, pp.21 to 23; Professor Alice N. H. Lun Ng, The Quest for Excellence, A History of The Chinese University of Hong Kong, the Chinese University Press, 1994, pp.2 to 33

[2] See The Quest for Excellence, A History of The Chinese University of Hong Kong at p.25

[3] See: the extract of the minutes of the Tenth Meeting of the Committee on 11th November 2005 at paragraph 4(i): “… The Science and Engineering subjects mostly used English in different modes of teaching and learning, but Chinese was also frequently used during laboratory sessions. Although Medical studies used English for lectures, tutorials, reading materials, assignments and examinations, they would also use Cantonese for clinical sessions and individual supervision. The Hotel and Tourism Management Programme mainly used English for lectures, while for internships, English (50%), Cantonese (25%) and Putonghua (25%) were all used. …” (emphasis added);

 

See also: the document entitled “Faculty of Engineering, Response to the Report of the Committee on Bilingualism” dated 28th September 2006: “the Faculty is conscious of the universal nature of engineering, therefore agrees that English should be the predominant language of instruction in the Faculty. …” (emphasis added)

 

[4] See: note 3 and the document entitled “Faculty of Medicine, Views of Faculty of Medicine on Draft Report of the Committee on Bilingualism”: “The Faculty of Medicine has been using English as the medium of instruction in lectures; etc. for the Medicine, Pharmacy and Nursing programmes. It has been Faculty policy to use English for teaching and examinations, except in communication with patients” (emphasis added)

 

[5] See: the document entitled, “School of Law, Response to the Report of the Committee on Bilingualism” at para.4

 

[6] See: The extract of the minutes of the Ninth Meeting of the Committee on 22nd September 2005 at paragraph 6: “the School of Journalism and Communication had decided that starting from 2005-06, all full-time teachers should change their teaching language to English, in three phases. This decision was made not only as a response to the University’s guidelines in relation to the admission of mainland and other non-local students, but more importantly, to align the development with international trends. As for those courses containing a strong cultural element, Cantonese would remain the language of teaching.” (emphasis added)

 

[7] See: The memo dated 19th October 2006 issued from Dean of Social Science to Dean of Graduate School concerning Draft Report of Committee on Bilingualism

 

[8] The Statistical Report of the Respective Proportions of Courses which use Chinese and English as Language of Instruction at the CUHK conducted by the Student Union of the CUHK dated 16 January 2008

[9] pp. 18 to 19 of the Report

[10] paragraphs 2 and 12 of the Report

[11] See also note 6 at paragraph 7. During the Ninth Meeting of the Committee on 22nd September 2005, the Committee agreed that disciplines with general applicability should in principle adopt English as the teaching medium, whereas those with a cultural element should in principle adopt Hanyu (Putonghua or Cantonese) as the teaching medium.

 

[12] The minutes of the Eleventh Meeting of the Committee at paragraph 3(iv)

[13] It was also reported in an article of the Hong Kong Economic Times dated 10 October 2007 (as mentioned in paragraph 35 of this Form 86A) that several alumni of CUHK intended to take out a judicial review challenge against the Policy.

[14] Black’s Law Dictionary, Eight Edition at page 436.

[15] Pages 18 to 19 of the Report

[16] See paragraph 32 of this Form 86A

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