HCAL365/2017
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HCAL 365/2017
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IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS
F NO 365 OF 2017 F
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BETWEEN
H LAM YUK WA HELEN Applicant H
I and I
J TECHNOLOGICAL AND HIGHER Putative J
EDUCATION INSTITUTE OF HONG KONG Respondent
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M Before: Hon Chung J in Chambers M
Date of Decision: 7 November 2017
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P DECISION P
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R 1. This is an application for leave to apply for judicial review. In R
her Form 86, the applicant seeks a declaration regarding:
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(a) the “judgment” of an Appeal Board;
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(b) a probation completion report.
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No particulars or other details have been given about the above.
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2. Exhibited to the supporting affidavit dated 20 July 2017 are:
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(1) an undated “Report of the Appeal on Performance Review” of
E the appeal panel of the Technological and Higher Education E
Institute (respectively “the appeal panel report” and “the
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Institute”);
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(2) an email dated 13 December 2016 from the applicant to a
H Ms Wong of the Institute. H
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3. According to a statement of the applicant (verified by her
J supporting affidavit): J
(a) the applicant began her employment with the Institute in K
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December 2015;
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(b) her probation completion report was compiled in mid-October
M 2016 (about 10-1/2 months afterwards) (“the Report”); M
(c) the applicant disagreed with the grading in the Report and N
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requested for an appeal;
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(d) there were matters in the Report which she found to be
P incorrect (either as regards conclusion or as regards facts). P
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4. According to the appeal panel report:
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(1) a meeting of the appeal panel was held in December 2016
S where the applicant attended; S
(2) additional documents were given at the hearing to the appeal
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panel by the applicant;
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B (3) the applicant intimated that she should be given a “highly
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effective” grading; C
(4) the applicant mentioned various matters where she had made
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considerable contributions to the Institute;
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(5) after the applicant left the hearing, her superior officer was
F invited by the appeal panel to provide background F
information regarding the Report;
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(6) the applicant’s superior officer explained the basis for grading
H the staff’s work performance; H
I (7) the applicant’s superior officer informed the appeal panel the I
applicant was dissatisfied with “effective” grading and she
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considered it to be a negative grading. The superior officer
K explained to the applicant it was an evaluation of her K
probation period performance and another review would be
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made as an annual assessment.
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The applicant indicates in her supporting affidavit she disagrees with
N various matters set out in the appeal panel report. N
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5. For reasons given below, I am not satisfied that this
P application has reached the threshold for giving leave to apply for judicial P
review.
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R 6. One, the applicant’s grading by her superior officer in the R
Report and the conclusions reached in the appeal panel report (namely, an
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“effective” grading was a positive grading and the appeal panel disagreed
T that it was equivalent to a “substandard” grading) were decisions made in T
an employment context. At least prima facie employment matters are
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matters falling with the realm of private law (contractual) rather than
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public law. Private law matters are not litigated by way of judicial review. C
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7. Two, the applicant has not explained why an “effective”
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grading should be regarded by her employer (the Institute) as a negative E
grading. The ordinary English meaning of the word “effective” is not
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negative or derogatory. More importantly, she has not explained whether
G such a grading would result in some practical harm or disadvantage to her G
or her employment with the Institute (such as her wages, her work title, her
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post and her scope of work). In this connection, it should be noted:
I (a) as at the time of the challenged decisions, the applicant’s I
employment with the Institute was probationary in nature and
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the employment period was relatively short (from December
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2015 to December 2016);
L (b) the applicant’s superior officer has indicated the applicant L
would undergo another grading process later (para 4(7)
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above);
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(c) in fact, both the applicant’s superior officer and the appeal
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panel did not regard the grading to be negative or adverse O
(para 6 above).
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Thus, it would seem any dispute about the grading is academic.
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R 8. Finally, this application was commenced in July 2017, more R
than half a year after the applicant became aware of the Report. While
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accepting that there was a delay in commencing this application, the
T applicant attempts to explain that time has been taken up by seeking legal T
advice. However, delay caused by a need to seek legal advice is usually
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not a valid reason; there is no exceptional circumstance to justify a
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departure from that view. C
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9. For the above reasons, this application is refused.
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(Andrew Chung)
H Judge of the Court of First Instance H
High Court
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The applicant was not represented
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