PROFESSOR CHAN YAN CHEONG v. THE RESEARCH GRANTS COUNCIL OF THE UNIVERSITY GRANTS COMMITTEE

CACV 78/2020

[2022] HKCA 1873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 78 OF 2020

(ON APPEAL FROM HCAL NO. 603 OF 2017)

___________________

___________________

____________________

JUDGMENT

____________________

Hon Chu VP:

A. Introduction

1.  This is the applicant’s appeal against the judgment of Au Yeung J (“the Judge”) given on 18 March 2020 after a rolled-up hearing of the applicant’s application for leave to judicially review (1) the decision of the respondent finding that plagiarism was established against him in respect of a research proposal submitted for the application of a research grant administered by the respondent, and imposing a penalty debarring him from applying under all research fund schemes administered by the University Grants Committee or the respondent for a term of two years; and  (2) the decision of the respondent dismissing his appeal and upholding the finding of plagiarism and the level of penalty.

2.  By the judgment, the Judge granted leave to the applicant to apply for judicial review only in relation to Ground 6 in the Re-Amended Form 86, which concerns the penalty imposed, but dismissed the judicial review with costs. 

3.  The main issues in this appeal concern: (1) whether the respondent’s finding that plagiarism was established against the applicant was justiciable; (2) whether it is irrational and unfair for the respondent to find that the applicant’s unintentional non-attribution of a figure in his research proposal amounted to plagiarism; and (3) whether the Judge, having found that the respondent had taken into account an irrelevant consideration in imposing the penalty, was correct to refuse relief and dismiss the judicial review on the ground that the matter had become academic.

B.   The facts

B.1.  The applicant

4.  At the material time, the applicant was a professor of the Department of Electronic Engineering of the City University of Hong Kong (“CityU”).  He joined the CityU in 1991 and was appointed a Chair Professor in 2001.

B.2.  The respondent

5.  The respondent, Research Grants Council (“RGC”), is a non-statutory advisory council established under the aegis of the University Grants Committee (“UGC”) in 1991.  UGC itself is a non-statutory advisory committee established in 1965 responsible for advising the government on strategic development and resource requirements of its funded universities, among which is the CityU.  UGC also provides research funding support for the funded universities through, among others, competitive research funding schemes.  

6.  The work of the RGC includes the administration of UGC’s competitive research funding schemes.  Its members are appointed by the Secretary for Education from local and non-local academics and local lay persons.  It operates through subject panels and assessment committees, which are tasked to consider applications for research grants.  Of relevance to this case is the Physical Sciences Panel (“PS Panel”), which at the material time (i.e. 2013-2014) was made up of professors of local or non-local universities.

7.  A Disciplinary Committee (“DC”) was set up under the RGC to handle research misconduct cases.  Since June 2016, as a result of a restructuring, three DCs have been set up, namely DC (Investigation), DC (Penalty) and DC (Appeal).  Respectively, they give advice and recommendations to the RGC on whether an alleged case is substantiated, the level of penalty to be imposed, and whether a previous decision under appeal should be upheld, overturned or modified.

B.3.  RGC’s procedures for handling suspected misconduct or impropriety

8.  The procedures adopted by the RGC and the DC for handling allegations of misconduct or impropriety may be summarized as follows^[1]:

(1)  A subject panel/assessment committee of the RGC will determine whether there is substance in the allegation for investigation. 

(2)  If investigation is considered to be warranted, the institution concerned will be asked to conduct an investigation and provide (i) an investigation report stating the findings and whether the alleged misconduct is substantiated; and (ii) the institution’s view on whether it accepts the investigation report. 

(3)  For each alleged misconduct case, the DC will appoint an independent Investigation Working Group (“IWG”), comprising three members drawn from the RGC or its subject panels/ assessment committees, who are experts in the area and familiar with RGC assessment procedures and have no conflict of interest.  The IWG will examine the institutional investigation report and report its findings to the DC.

(4)  Having examined the IWG’s recommendations, the DC will make a recommendation to the RGC and, if the case is substantiated, also the suggested level of penalty. 

(5)  The RGC will consider the DC’s recommendations and make its decision on the case, including the penalty to be imposed if the allegation is found to be substantiated.

(6)  The person being complained against may appeal the RGC’s decision through the institution concerned, who should indicate whether the appeal is supported.

(7)  The DC will appoint an appeal board consisting of three or more members drawn from the RGC or its panels/committees who have not served on the IWG in the case.  The appeal board will report its findings to the DC.

(8)  After examining the findings of the appeal board, the DC will make a recommendation to the RGC.

(9)  On the basis of the DC’s recommendations, the RGC will decide whether to endorse, amend or overturn the previous decision and the penalty imposed.        

B.4.   RGC’s penalty guidelines

9.  The RGC has endorsed a set of guidelines on the determination of penalty for research misconduct and adverse performance records.  At the material time, the prevailing penalty guidelines were those dated June 2012 (“2012 Penalty Guidelines”). 

10.  On 10 December 2016, the RGC endorsed a revised set of penalty guidelines (“New Penalty Guidelines”) in replacement of the 2012 Penalty Guidelines.

11.  For the misconduct of plagiarism, with which this case is concerned, there are differences between the two sets of guidelines.  Under the 2012 Penalty Guidelines, plagiarism fell into the “very serious” category, carrying a maximum penalty of disqualification and debarment from all research funding schemes administered by UGC/RGC in all capacities for five years plus the current year.  But no minimum sanction was prescribed.  Under the New Penalty Guidelines, a minimum penalty was prescribed for plagiarism, which is two years’ debarment from all research funding schemes administered by UGC/RGC in all capacities plus disqualification of all submitted applications in all capacities.     

B.5.  The applicant’s research funding application

12.  At the material time, the RGC administered a joint research scheme with the Ministry of Education of the PRC called the “Specialised Research Fund for the Doctoral Programme of Higher Education (SRFDP) and Research Grants Council Earmarked Research Grants (RGC ERG) Joint Research Scheme”, which provided research grants for joint research collaboration projects between UGC-funded institutions and institutions supported by the Ministry of Education under SRFDP.

13.  In the 2013/2014 exercise, a joint application was made by CityU and Huazhong University of Science and Technology (“HUST”).  On about 15 April 2013, an application dated 27 March 2013 (“the Application”) was formally submitted by the applicant to the RGC to apply for research funding under the SRFDP/RGC ERG Joint Research Scheme for a project entitled “A study of electronic interconnects nano-powders; synthesis, integration and failure analysis for green nanoelectronic applications”.  The Application was signed by the Applicant as the Principal Investigator (“PI”) of Hong Kong and Professor Wu Fengshun of HUST as the Mainland PI.  Professor Wu had separately made an application to the relevant authority in the Mainland. The Application and Professor Wu’s application were separately assessed by the RGC and the relevant Mainland authority respectively.  The applicant’s research proposal would only be funded by the RGC if the RGC and the Mainland authority respectively agreed to fund the Application and Professor Wu’s application. 

14.  The research proposal in Part II of the Application contained a Figure 2b entitled “Representative image of a nano-electronic device showing intricate structure of the nano-interconnect” (“Figure 2b”).  It is common ground that the figure was not referred to in the main text of the research proposal.  It is also not in dispute that the source of the figure was not acknowledged in the proposal.

B.6.  Investigation of suspected plagiarism in the applicant’s research proposal

15.  The Application was reviewed by two members of the PS Panel (as First Reader and Second Reader) and three external reviewers.  In the course of the review, the First Reader raised a query as to the source of Figure 2b.  Upon request for clarification from the RGC secretariat through the Research Grants and Contracts Office of CityU (“RO/CityU”), the applicant^[2] explained that Figure 2b was put in by one of his post-docs and it was due to an oversight that the source was not quoted.  He also indicated that the figure originated from a journal paper in Applied Physics Letter (“APL paper”)^[3] and provided the APL paper to the RGC through the RO/CityU.     

16.  After consulting the Chairman of the PS Panel, whose advice was that there was some misconduct in the proposal, the RGC secretariat sought representations from the applicant through the RO/CityU.  The applicant responded by asking that both Figures 1 and 2 be removed from the research proposal, which he considered would not affect the technical quality of the Application, and providing a revised application.  The RGC secretariat refused to accept the revised proposal^[4].

17.  Having collected the views of the Chairman and members of the PS Panel, the RGC secretariat invited the CityU to conduct an investigation on the alleged research misconduct of plagiarism by the applicant. 

18.  The CityU appointed an investigation committee (“IC/CityU”), comprising four senior members of its College of Science and Engineering, to investigate the matter.  The IC/CityU received a written statement of clarifications together with attachments from the applicant and also met with him before providing an investigation report dated 22 April 2014 to the CityU. 

19.  In summary, the investigation report stated that: (1) The source of Figure 2b that the applicant provided to the RGC was incorrect.  The figure did not originate from the APL paper but was likely to be from another source in the web^[5]; (2) The applicant had asked his post-doc to delete Figure 2b from the proposal as it was irrelevant.  When he signed the Application, he was unaware that the figure was still in the proposal.  He had since not been able to contact the post-doc^[6]; and (3) There was no evidence that the failure to acknowledge the source of Figure 2b was intentional, though this could not have happened had the applicant “run a tighter ship”.  The IC/CityU made no conclusion or finding on whether the applicant had committed plagiarism, as its report concluded as follows:

“That the figure was in the proposal unacknowledged is a fact. However, that the figure was deemed irrelevant by the PI (per his own statement) and was not referred to in the proposal are also facts. Furthermore, that the PI incriminate himself by providing RGC with the wrong source of the figure, and that he did not know the figure was still in the proposal when he signed are consistent with the loose way the PI handled the whole matter. Whether or not plagiarism has been committed requires judgment to be passed, which is beyond the mandate of our investigative panel.” (emphasis added)

20.  On 2 May 2014, the CityU provided to RGC a report (“the Institutional Report”) that included the applicant’s statement of clarifications with attachments, the IC/CityU’s investigation report, and a letter from the Vice-President (Research and Technology) (“2 May 2014 Letter”), which stated that:

“One significant findings of the Investigation Committee is that there is no evidence to indicate the PI’s failure to acknowledge the source of figure 2(b) is intentional. The figure has no relevance to the proposed topic and it is not referred to in the proposal. It is more likely to be an oversight than intentional plagiarism. In this respect, I would like to confirm that the institution endorses strongly and supports the findings of the Investigation Committee; the alleged misconduct is not substantiated.” (emphasis added)

21.  The DC appointed an IWG, consisting of the PS Panel Chairman and the First and Second Readers, to consider the matter.  The IWG was provided with a case summary (with the Institutional Report annexed to it) which identified the nature of the impropriety as plagiarism, as well as the 2012 Penalty Guidelines.  The First and Second Readers expressly found it was a case of plagiarism while the PS Panel Chairman, by recommending a penalty, implicitly considered the allegation of plagiarism was substantiated.

22.  The IWG’s findings and recommendations on penalty together with other documents, including the Institutional Report and the 2012 Penalty Guidelines, were considered by the DC.  While the five members differed in their views on the seriousness of the impropriety^[7] and, in turn, recommendations on the level of penalty, they were in agreement that it was a case of plagiarism where the PI had presented somebody else’s work as his own, and a sanction was called for.  The DC Chairman’s recommendation is a debarment of one year but he was prepared to go along with two years’ debarment, observing that “[t]he PI should have taken care to reference the figure so as not to mislead the reviewer.”^[8]

B.7.  RGC’s decision

23.  The RGC considered the case at its meeting held on 20 June 2015.  Members were provided with a summary of the DC’s findings and recommendations, together with the views of each of the members of the DC and IWG, and also the Institutional Report.  The RGC endorsed the findings of the DC Chairman and resolved to impose a penalty of debarment of two years from 20 June 2015 to 19 June 2017.

24.  By separate letters both dated 28 October 2015, the RGC informed the CityU and the applicant of its decision. Due to a typographical error, the letters were replaced by revised letters dated 15 December 2015^[9].

25.  The material part of the letter to the applicant as revised stated:

“In the light of the information which had been made available, the Council noted that you had failed to provide the source of a figure when quoting it in the proposal and had presented somebody else’s work as your own. The Council considered that plagiarism was substantiated in this case. Being the PI responsible for the integrity of the work you signed on, you should have taken care to reference the figures so as not to mislead the reviewers. In this regard, you will be debarred from all research funding schemes administered by the University Grants Committee (UGC)/RGC in all capacities from 20 June 2015 to 19 June 2017.”

B.8.  The applicant’s appeal against the RGC’s decision

26.  On 27 January 2016, the applicant appealed against the RGC’s decision relying on two grounds of appeal.  The first was that, given the overwhelming evidence that the inclusion of Figure 2b was an inadvertent oversight, there was no sufficient evidence that the applicant intended to mislead anyone.  The second was that the RGC had failed to give adequate reasons for its decision in that it had not indicated the factual and legal basis for finding against the applicant, and the RGC’s decision was accordingly irrational.  CityU supported the appeal, taking the view that there was no evidence to indicate that the failure to provide the source of Figure 2b in the proposal was intentional^[10].

27.  In October 2016, the DC(Appeal) appointed a three-member^[11] Appeal Board to investigate the appeal.  All three members concluded it was a case of plagiarism, although they differed on the seriousness of the misconduct.  While two members agreed with the original penalty of two-years debarment, one member recommended that the debarment be reduced to one year.  On 10 February 2017, the applicant was informed of the findings of the Appeal Board and invited to make a final representation.

28.  In the final representation prepared by senior and junior counsel on behalf of the applicant, it was submitted that as there was no standard definition of plagiarism, the RGC should adopt the definition which was most generous to the applicant.  Reliance was placed on the definition of plagiarism set out in the website of the Run Run Shaw Library of the CityU, as follows:

“According to the Cambridge Dictionaries Online, to plagiarize is ‘to use another person’s idea or a part of their work and pretend that it is your own’. It is an act of using someone else’s ideas, words, concepts, images, sounds, formulae or data without acknowledging the source, either intentionally or accidentally. It is therefore a dishonest practice of claiming credit for something you did not do.”

29.  It was argued that there was no plagiarism because (i) the applicant did not pretend that Figure 2b was his own when he in fact did not intend to include it in the proposal; (ii) the applicant was not dishonest as the inclusion of the figure was an oversight; (iii) the applicant did not claim credit for the figure which was not relevant and not referred to in the proposal; (iv) the clear finding of the IC/CityU is that plagiarism is not substantiated; and (v) no matter what definition of plagiarism was to be adopted, there was no sufficient evidence since the “plagiarized material” (i.e. Figure 2b) was included without the applicant’s knowledge. 

30.  As to the level of penalty, the RGC was urged to take a lenient approach having regard to (i) the applicant’s clear record; (ii) the low propensity of him committing similar mistakes; (iii) he was cooperative, forthcoming and had tendered an apology at the earliest opportunity; and (iv) the IC/CityU’s finding that plagiarism was not substantiated. 

31.  The DC (Appeal), consisted of five members who were not previously involved in the matter, discussed the appeal at a tele-conference held on 3 April 2017.  In its report dated 8 June 2017, the DC (Appeal) recommended that the original decision and the level of penalty imposed be upheld.  In making its findings, the DC (Appeal) had regard to CityU’s webpage on Academic Honesty, which stated that: “plagiarism could be defined as intentionally or unintentionally failing to acknowledge the source of ideas or quoted text in a creative work”.  It also observed that the IC/CityU did not pass any judgment on whether plagiarism was committed by the applicant, and the reference list of the proposal failed to cite other researchers’ work, despite being required to do so. 

B.9.  RGC’s decision on the appeal

32.  At its meeting held on 17 June 2017, the RGC considered the investigation report of DC (Appeal) and approved its recommendations.  By letter dated 7 July 2017, the RGC informed the applicant of its decision to uphold the previous decision including the level of penalty.  The material part of the letter stated as follows:

“The Disciplinary Committee (DC) (Appeal) and the RGC examined all the relevant information/documents of the case, including the Appeal Board reports, Professor Chan’s grounds of appeal and final representations, and concluded that there was clear evidence that Professor Chan, the Principal Investigator (PI) of the concerned proposal, did not cite the source of Figure 2b in the proposal.  The DC (Appeal) agreed that “plagiarism” was commonly interpreted as the use of someone else’s ideas, words, figures, concepts, etc. without acknowledging the source, no matter if it was done intentionally or unintentionally.  Being the PI of the proposal, Professor Chan should be held responsible for the omission of acknowledgment of the source of figure.  Hence, this was a case of plagiarism.

The DC (Appeal) noted that two years debarment from applying research funding schemes administered by the RGC is the minimum penalty for plagiarism.  Taking into account the mitigating factor of this case (i.e. Professor Chan did not have intention to plagiarize), the DC (Appeal) considered that the level of penalty imposed on Professor Chan was commensurate with the gravity of the case.  The level of penalty was imposed in accordance with relevant RGC’s guidelines and reference to precedent cases.”     

C.   Application for judicial review

33.  By a Form 86 filed on 8 September 2017 as amended and re-amended on 26 September 2018 and 18 March 2020, the applicant applied for leave to judicially review: (1) the RGC’s decision finding that plagiarism was established and imposing a penalty debarring him from applying under all research fund schemes administered by the UGC or RGC for a term of two years (“the Decision”); and (2) the RGC’s decision dismissing his appeal and upholding the Decision (“the Appeal Decision”).  The applicant sought orders of certiorari to quash the two decisions, and declarations that they were void and unlawful.

34.  Pursuant to the Judge’s directions, the RGC filed an Initial Response which, in addition to dealing the applicant’s grounds of application, raised three preliminary points: (1) It is not open to the applicant to challenge the Decision as it was superseded by the Appeal Decision, quite apart from the question of delay; (2) The issue raised in the case involves academic judgment which is a matter for the academics and is not justiciable; and (3) There is no dispute that Figure 2b was included in the proposal without acknowledging its source while there is also no evidence that the failure was intentional. 

35.  The Judge held a rolled-up hearing to consider the applicant’s application to re-amend the Form 86, the application for leave to apply for judicial review and, if leave was granted, the judicial review. 

36.  The Judge summarised the issues raised in the application as follows^[12]:

(1)  Whether the Decision and the Appeal Decision are subject to academic judgment immunity and not reviewable by the court (Ground 1/Justiciability Ground);

(2)  Whether the RGC’s failure to define plagiarism and to properly formulate the charge of plagiarism against the applicant amounted to a breach of natural justice, irrationality or illegality on the part of the decision-maker (Ground 2/ Lack of Definition Ground);

(3)  Whether the lack of opportunity for the applicant to make representation on materials, including case precedents exchanged between the IWG and the DC (but not disclosed to the applicant), amounted to breach of natural justice (Ground 3/Non-Disclosure of Materials Ground);

(4)  Whether the failure by the RGC to disclose the identity of the members of the IWG and DC/ DC (Appeal) amounted to a breach of natural justice (Ground 4/Non-Disclosure of Identity Ground);

(5)  Whether the RGC had failed to give adequate reasons for the finding of plagiarism, amounting to a procedural impropriety (“Ground 5/No Adequate Reasons Ground”); and

(6)  Whether, in relation to the Appeal Decision, the RGC had wrongly taken into account the New Penalty Guidelines, which were not in force at the time the Application was filed, in upholding the applicant’s penalty (Ground 6/Penalty Ground). 

D.   The Judge’s decision

37.  By her judgment handed down on 18 March 2020, the Judge found Grounds 1, 2, 4 and 5 not reasonably arguable and Ground 3, though arguable, has no relevance.  Leave to apply for judicial review on those grounds was accordingly refused.  As to Ground 6, the Judge granted leave but dismissed the judicial review.

38.  In this appeal, the applicant sought only to challenge the Judge’s decision on Grounds 1, 2 (first limb), 5 and 6 (see [48] below).  The Judge’s reasons for decision in relation to these four grounds may be summarised as below.

D.1.  Ground 1 (Justiciability Ground)

39.  The Judge considered that a distinction should be drawn between a challenge to an academic judgment requiring knowledge of academic convention, and a challenge to the procedural fairness or rationality of the decision.  The former is non-justiciable whereas the latter is reviewable.  The Judge held that issues on whether plagiarism required an element of intention and whether the applicant committed plagiarism were non-justiciable.

D.2.  Ground 2 (Lack of Definition Ground)

40.  There are two limbs under this ground. The first limb complains that the RGC failed to adopt a generous definition of plagiarism.  The Judge pointed out that members involved in the process were aware that there were numerous definitions.  She held that it is within the academic judgment of the DC (Appeal), and it is neither irrational nor perverse, to adopt the definition that “plagiarism could be defined as intentionally or unintentionally failing to acknowledge the source of ideas or quoted text in a creative work” (see [31] above).  The Judge rejected the argument that the decision-makers worked out the definition around the facts, noting that the question of intention was at the forefront of the deliberation of every body/panel. 

41.  The Judge also considered that the website of the Run Run Shaw Library of the CityU, relied on by the applicant (see [28] above), had to be read together with other statements on plagiarism on CityU’s website, such as those on “Academic Honesty” (see [31] above).  The Judge was of the view that whether plagiarism required an element of intention fell into the realm of research integrity and thus the expertise of academia, not the court. 

42.  While the applicant had not shown any authority which gave an affirmative and exclusive definition of plagiarism that required intention, the several definitions of plagiarism in Black’s Law Dictionary that the RGC referred to did not require intention.  The Judge also held that, even if the definition of plagiarism is justiciable, it had not been shown why the unanimous decision of 16 academics was erroneous as a matter of law, perverse or irrational.

43.  On the second limb which complains that the RGC failed to formulate precisely the charge, the Judge pointed out that the subject matter, the documents involved and the conduct alleged, were all set out in the letters to the applicant.  The Judge considered that the applicant always knew that he was facing a case of suspected plagiarism that concerned Figure 2b; had admitted the omission to acknowledge the figure, and was able to make representations and put forward his defence, which gave rise to the issue on intention.  In the appeal process, the applicant was further provided with the views of all the investigative bodies and the findings of the Appeal Board.  The Judge concluded that it was not shown that the applicant could have put forth a better case if the charge was formulated differently.

D.3.  Ground 5 (No Adequate Reasons Ground)

44.  The applicant’s complaints under this ground are: (i) despite plagiarism having different definitions, the DC or DC(Appeal) chose a definition that did not require intention to be an element of the offence; (ii) this was at odds with CityU’s view that the allegation of misconduct was not substantiated; and (iii) there was a change in stance in that the penalty was changed from one of a warning letter to that of a two-year debarment.

45.  Having regard to the legal principles set out in [60] to [65] of the judgment (see [94] below), the Judge found the applicant had failed to show how the alleged failure to give, or to give adequate reasons had prejudiced him.  The Judge held that: (i) the RGC and all the bodies involved had adequately explained why the applicant was found guilty of plagiarism, despite his defence of negligence, oversight and lack of intention.  The applicant could understand the reasons and had advanced submissions in his appeal to address them; (ii) the decision of the RGC was not inconsistent with the findings of the CityU since the IC/CityU had specifically left open the question of whether plagiarism was committed, the letter of the Vice-President (Research and Technology) merely stated that it was more likely to be an oversight than intentional plagiarism, and the CityU’s official view of plagiarism covered unintentional acts; and (iii) the Vice-President (Research and Technology) had misunderstood the IC/CityU when he said in his letter that “the institution endorses strongly and supports the findings of the Investigation Committee; the alleged misconduct is not substantiated” (see [20] above) in that the IC/CityU did not find that plagiarism was not substantiated; and (iv) the RGC did not change its stance on penalty.

D4.  Ground 6 (Penalty Ground)

46.  The Judge considered this ground arguable having regard to the fact that the New Penalty Guidelines only came into force in December 2016 and were inapplicable to the applicant’s case, but the DC (Appeal) made reference to these guidelines and the minimum level of penalty in the tele-conference on 3 April 2017.  The Judge held that the RGC erred in law in applying the New Penalty Guidelines. 

47.  The Judge, however, declined to grant the relief sought and dismissed the judicial review for the reasons that: (i) The penalty had been served and there is no point in remitting the matter for a new penalty to be imposed; (ii) The judicial review had accordingly been rendered academic.  There was no suggestion that similar cases were expected to arise or there was a wider public interest justifying exercising the discretion to hear an academic question; and (iii) Although the Appeal Decision wrongly referred to the New Penalty Guidelines, the Decision itself had no error. Given that the 2012 Penalty Guidelines, which were applicable, categorized plagiarism as very serious misconduct and prescribed five-year debarment as the maximum penalty, the two-year debarment imposed by the RGC was on the low side and had given consideration to the applicant’s culpability and his case that the non-attribution was unintentional.          

E.   This appeal

48.  By a Notice of Appeal dated 6 April 2020 as amended on 24 June 2020 and a Supplemental Notice of Appeal dated 5 March 2021, the applicant appealed the Judge’s decision to this Court. Initially, the applicant’s appeal was directed at the Judge’s decision on all the six grounds in support of his judicial review application.  Subsequently, it was indicated in counsel’s written submissions that the appeal against the decision on the second limb of Ground 2 (failure to properly formulate the charge), Ground 3 (non-disclosure of materials) and Ground 4 (non-disclosure of identity) would not be proceeded with. 

49.  The remaining grounds of appeal relied on by the applicant can be summarised as follows (respectively “Ground (1)” to “Ground (4)”):

(1)  The Judge was wrong in law in holding that the Decision and the Appeal Decision are subject to academic judgment immunity in that she had conflated the issue of what acts and omissions constitute academic misconduct (which is a matter of academic judgment), and the issue of what is the fair, appropriate and reasonable label for such misconduct according to the rules applicable to the Decision and the Appeal Decision (which issue is not a matter of academic judgment). 

(2)  The Judge was wrong in finding that the RGC’s failure to define plagiarism, or the adoption of a wide definition that includes unintentional non-attribution, is not irrational or perverse.  It also infringes the unfair labelling principle. 

(3)  The Judge was wrong in finding that the RGC’s failure to give adequate reasons for finding plagiarism does not amount to procedural impropriety.

(4)  The Judge was wrong in not quashing the penalty, or declaring the penalty unlawful, despite holding that the RGC erred in taking into account inapplicable penalty guidelines. 

50.  In the Amended Notice of Appeal and the Supplemental Notice of Appeal, the applicant only asked that the Judge’s decision be reversed but did not set out the order that he asked this Court to make.  After the hearing of the appeal and upon our direction, the applicant lodged a draft order which seeks: (1) an order that the Appeal Decision^[13] be quashed; (2) alternatively, an order that the penalty imposed by the RGC be quashed; (3) a declaration or indication that the appropriate penalty would have been a warning letter; and (4) an order for costs.    

F.   Discussion

   F.1.  Ground (1): Justiciability

51.  On this ground, the core argument of Mr Strachan SC, who appeared together with Mr Chau for the applicant, is that the issues of whether plagiarism requires an element of intention and whether plagiarism was committed are not subject to academic judgment immunity and are justiciable by the court because they do not raise a true question of academic judgment.  He put forward two reasons to support this argument. First, he submitted that whether the court considers itself competent to determine the complaint is a key factor in determining whether academic judgment immunity applies, relying on R (Mustafa) v Office of the Independent Adjudicator for Higher Education [2013] EWHC 1379 (Admin).  Unlike matters calling for academic judgment, such as marking an examination paper^[14], criticism of and recommendation on a thesis^[15] and termination of a degree course due to poor academic performance^[16], the court is well-equipped in this case to deal with the meaning and proper scope of plagiarism, a dispute that does not concern academic judgment.  The fact that the academic bodies had problems grappling with the meaning of plagiarism in this case indicate that it is not a true question of academic judgment.  Secondly, the applicant’s challenge to the RGC’s decisions is based on conventional judicial review grounds.

52.  Mr Wong SC, who appeared together with Mr Miao for the RGC, submitted that, in the context of this case, whether the unintentional inclusion in the research funding application of a figure without acknowledgement constitutes plagiarism calls for the exercise of judgment and, in turn, knowledge of academic conventions regarding research integrity and the use of references in academic works.  It is also said that plagiarism is “an ethical, not a legal, offense”^[17], the meaning of which “travel[s] deep into the field of academic judgment”: Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at [6].  The court is thus simply not equipped to intervene, and it is inappropriate for the court to substitute its views for those of the academic community, or to tell the academic community what is or is not acceptable conduct in terms of academic integrity.

53.  In my view, one should start with the relevant common law principles, which are not really in dispute.  They are that: (1) academic judgment immunity would apply where the central subject of the complaint is a dispute about an academic judgment; (2) not all judgments or decisions made by academics qualify for the immunity; (3) it is the nature and extent of the judgment that determines the point; (4) where the challenge is made to the process by which the academic judgment is made, such as on grounds of procedural unfairness, bias and irrationality, it would be justiciable by the court: Clark v University of Lincolnshire and Humberside, at [6] and [29]; R (Gopikrishna) v The Office of the Independent Adjudicator for Higher Education [2015] EWHC 207 (Admin), at [188]; and R (on the application of Mustafa) v The Office of the Independent Adjudicator for Higher Education [2013] EWHC 1379 (Admin), at [49]. 

54.  It is also apt to note the words of Males J in Mustafa at [49] and [54] that the courts have been cautious in determining what constitutes an exercise of academic judgment, and the extent of the area of immunity or exclusion “will have to be considered case by case, with the possibility that nice questions may arise, the answers to which will no doubt be affected to some extent by whether the issue raised is one which the court regards itself as competent to determine”.  And on the question of whether plagiarism has been committed, although it will often, and perhaps usually, require an exercise of academic judgment, this is not necessarily so, such as in the case of a wholesale copying or outright plagiarism.  

55.  In short, whether a challenge relates to an exercise of academic judgment which is not justiciable by the court has to be considered in the context of the case, having regard to the facts and the nature of the complaint and dispute.   

56.  In the present case, the issue is whether plagiarism has been committed by the non-attribution of a figure (deemed irrelevant by the PI) in a proposal for research funding application, which was unintentional and due to an oversight.  In my view, this is a matter that calls for the exercise of academic judgment as to whether and, if so, how and how much the unintentional non-attribution may impact on the assessment of the research proposal in question, its credibility and integrity, and also the overall research funding process.  Contrary to the thrust of Mr Strachan’s submission, it is not an exercise to construe the meaning of the word “plagiarism” as if it is to construe a word in the statue book or in a contractual document, something which the court is of course familiar with and equipped to undertake.  The present dispute engages considerations as to research originality (including knowledge discovery), feasibility and integrity of a research proposal and the assessment criteria for competitive research grant. These are areas where academic understanding, conventions and expertise are relevant and important.  The court, in contrast, does not have the required expertise and competence to pass a judgment.        

57.  I also do not agree with the submission that the academic bodies had problems grappling with the meaning of plagiarism.  This is plainly not supported by the evidence.  While some members of the IWG and DC did not expressly say they found plagiarism established, given that they had made recommendation on the level of penalty with knowledge that the complaint under consideration was plagiarism, the necessary implication is that they were satisfied that it was a case of plagiarism.  Mr Strachan placed emphasis on the IWG Chairman’s comment that it was mainly negligence and oversight, the First Reader’s reference to the view of the CityU Vice-President (Research and Technology) that plagiarism was not substantiated and two DC members’ views that it was some sort of negligence and attention was needed.  However, these professors would not have recommended any penalty if they did not consider the applicant had committed plagiarism.  In fact, the First Reader, after referring to CityU’s view, went on to say “I saw this as ‘presenting somebody else’s work as one’s own’, i.e. plagiarism”.  I agree with Mr Wong that if, as Mr Strachan argued, the academic bodies had difficulties agreeing on the definition of plagiarism, it only underlines the need to reserve the matter to a decision-maker who possesses the institutional expertise to determine the scope of plagiarism and evaluate the applicant’s conduct.

58.  For these reasons, it would be inappropriate for the court to adjudicate on a challenge to the RGC’s decisions that plagiarism was established against the applicant and to dismiss the applicant’s appeal against the finding on the ground that it was wrong to regard unintentional non-attribution as plagiarism. 

59.  That however is not the end of the matter.  The applicant also challenged the RGC’s decision on the ground that it is irrational, perverse or manifestly unfair to regard unintentional conduct as plagiarism.  The Judge had considered this aspect of the challenge, and her decision on it is part of the subject matter of this appeal.  The issue of academic judgment immunity and justiciability is thus not determinative of the appeal.

    F.2.  Ground (2): Definition of plagiarism

60.  The applicant’s arguments under this ground have developed in an amorphous way.  It began with a general ground in the Amended Notice of Appeal (at [2]) that the Judge was wrong in finding the RGC’s failure to define plagiarism did not amount to unfairness, irrationality or illegality.  It was then expanded in the Supplemental Notice of Appeal (at [2]) to include the complaint that the RGC’s adoption of a wide definition was wrong in failing to align the definition with the severity of the penalty (“Alignment Argument”) and not taking into account the fair labelling principle (“Fair Labelling Argument”) and the failure to adopt a narrower definition rendered the RGC’s decisions irrational, perverse or unfair. This ground was further developed in the applicant’s skeleton argument (at [28] and [29]) to include the argument that the definition of plagiarism was ambiguous and the ambiguity should be resolved in favour of the applicant (“Ambiguity Argument”).

61.  Of the three arguments now advanced under this ground, namely, (1) Fair Labelling Argument, (2) Alignment Argument and (3) Ambiguity Argument, Mr Strachan acknowledged that the Fair Labelling Argument is a new point not made before the Judge.  The Alignment Argument is also not argued before the Judge, but Mr Strachan contended that it was only a development of the argument that the word plagiarism should have been narrowly construed.  He submitted that insofar as these contentions involved new points, they may be advanced in this appeal without infringing the Flywin principles^[18] because the facts were not disputed and the evidence would not have been different had the points been taken. 

62.  In response, Mr Wong submitted that the Flywin principles not only apply where the new arguments would engage factual disputes not resolved before the trial judge, but also where a development of the law is involved, especially where the Court of Appeal is asked to address a new legal issue.  The present challenge against infringement of the fair labelling principle is a case in point where the intellectual input of the first instance judge should be fully deployed.  Mr Wong also based his objection on the fact that the new ground was not pleaded in the Re-Amended Form 86.

F.2.1   Fair Labelling Argument

63.  Dealing firstly with the Fair Labelling Argument, it is a completely new ground that was neither included in the Re-Amended Form 86 nor argued before the Judge.  At the heart of the argument is the fair labelling principle, which essentially stipulates that “the label applied to an offence ought fairly to represent the offender’s wrongdoing”^[19], and aims “to ensure that the definition of an offence would provide society with an accurate moral grasp of the defendant’s wrongdoing and, at the same time, ensure that the distinctions between offences are marked in the offences committed, making it clear that there are significant moral distinctions between offences”^[20]. Applying the principle, the applicant argued that the definition of plagiarism should be limited to intentional non-attribution since there is a universal tendency to regard plagiarism as a form of dishonesty equivalent to cheating; and that in the present case the wide definition was unfair as the honest perpetrator might be wrongly treated as a cheat while a deliberate penetrator might not be so clearly regarded as the cheat he/she is given the ambiguity in the wide definition.  It was further argued that the wide definition was illogical in stating that plagiarism is dishonest even though it might be committed unintentionally.

64.  As we indicated at the hearing, the applicant should not be permitted to raise this new ground.  In the first place, the ground was not included in the Re-Amended Form 86.  In the judicial review context, the scope of the review is strictly defined by the Form 86^[21].  As this court has repeatedly held, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave to apply for judicial review, otherwise, an applicant could simply disregard the stringent time limit in Order 53 Rule 4(1)^[22].  In this case, the applicant should and could have included the point when applying to re-amend his Form 86 to add new grounds under O.53 r.3(6) Rules of the High Court, Cap 4A^[23].

65.  Further, although Mr Strachan was at pains to argue that the evidence would not have been different had the point been taken, the consideration of fairness which underlines the “state of the evidence” bar^[24] is not confined to the absence of relevant evidence.  It will also arise where the new point will affect the way the case is conducted and argued.  As this Court observed in Lehmanbrown Ltd v Union Trade Holdings Inc (unreported) HCMP 977/2015, 17 June 2015, at [10]:

“Whilst the Court of Appeal obviously has power to entertain new points in an appeal, it is also clearly and firmly established that new points which are fact sensitive or otherwise affect the course of evidence or conduct of the case at the hearing below should not be allowed. Though this principle is usually applied in situations where the new points necessitate further evidence to be adduced, it is not confined to such scenarios. Very often, the raising of new point by one party may lead to the other party raising counter arguments and the consideration of such counter arguments may involve factual assessment in a different light from that undertaken by the court below. Sometimes, it may involve a different weighing of factors in the exercise of discretion. Alternatively, the other party may embark on a different course of forensic conduct if the new point were taken earlier. The appellate court, in considering whether the new point would be entertained, is entitled to take these matters into account in order to avoid unfairness to the other party.”

66.  Secondly, I agree with Mr Wong that even where a new point is not barred on the “state of the evidence” ground, the court will not allow it to be run if entertaining and accepting it would constitute a major development of the law, as it is best that the court develops the law with all the intellectual resources fully deployed: Flywin at [39].  Mr Strachan argued that such consideration should not apply since the new argument was sought to be raised in the Court of Appeal and not the Court of Final Appeal, and the principle in [39] of Flywin was with specific reference to the Court of Final Appeal.  I do not agree.  The fact that the new point was not considered in the court below is of no less importance in the Court of Appeal in the present instance.  This is because, as is evident from the academic writings and cases relied on by Mr Strachan^[25], fair labelling is a criminal law principle concerning fair and appropriate categorization of offences and proportionate sentencing.  Whether and how the criminal law concept may apply to regulation of academic misconduct and judicial review of a public body’s decision on a complaint of academic misconduct requires careful analysis and deliberation, and the applicant’s argument, if accepted, will signify a major development of the law.  The Court of Appeal should not embark on it without having the assistance of the first instance judge’s views on the matter. 

67.  Thirdly, as Mr Wong submitted, the Fair Labelling Argument and the contention that a finding of plagiarism created an unfair stigma on him professionally or personally assumes that plagiarism should not extend to accidental, negligent or unintentional acts and would not generally be understood to include unintentional acts or to describe what the applicant had done.  There is, however, no basis for the assumption or the effect of a finding of plagiarism as contended for by the applicant.  On the contrary, the definition of plagiarism adopted by the CityU (see [28] and [31] above), and the fact that the 16 professors[26] involved in the disciplinary process found plagiarism established while accepting the explanation that the non-attribution was unintentional, show that the argument is based on a faulty premise.  Further, no authority has been cited to us to show that the fair labelling principle may be applied to a challenge of an administrative decision when the court’s role is to review the decision and not as an appellate body.  The two cases relied on by the applicant are criminal cases in which the fair labelling principle was referred to in the context of criminal offences and sentencing^[27]. 

68.  For these reasons, we had refused to allow the applicant to advance the Fair Labelling Argument.

F.2.2   Alignment Argument

69.  Turning next to the Alignment Argument, it should be noted at the outset that this argument, as well as the Ambiguity Argument, are directed at the substantive fairness of the RGC’s decisions.  It is not the applicant’s case that the RGC had failed to take into account considerations of fairness in its decision-making process.  Rather, it is contended that the outcome is unfair or oppressive to him.  This being the case, the applicable standard is that of Wednesbury unreasonableness and the applicant has to show that the RGC’s decisions are so unreasonable that no reasonable authority could ever have come to them^[28]. 

70.  The Alignment Argument was not raised before the Judge.  At the hearing, we had received submissions on a de bene esse basis.  The thrust of the argument is that there should be alignment between the definition of plagiarism and the penalty for plagiarism. The applicant submitted that because in the 2012 Penalty Guidelines, plagiarism is put at the highest level of gravity with the clear implication that disqualification and some period of debarment is a minimum penalty, the definition of plagiarism should align with it and a narrow definition that excludes unintentional non-attribution should be adopted. 

71.  In support of the argument, Mr Strachan had initially sought to rely on a table showing the definition of plagiarism adopted by six overseas and local universities to argue that these academic institutions while adopting a wide definition of plagiarism had aligned it with a penalty regime without minimum penalty.  He abandoned the table after it was pointed out that this is new evidence, and the definitions shown in the table relate to submitted works of students and examination papers.   

72.  In my view, the Alignment Argument is not arguable.  Firstly, the 2012 Penalty Guidelines did not expressly provide for a minimum penalty for plagiarism.  The penalty for the “very serious” category of misconduct (to which plagiarism belongs) is stated to be disqualification and debarment for a maximum of five years plus the current year.  Mr Strachan submitted that the clear implication is that disqualification and some period of debarment is a minimum penalty.  Even so, no minimum period of debarment was specified in the guidelines.  Instead, it was a spectrum running up to a maximum of five years’ debarment.  This is a reflection of the fact that plagiarism encompasses a range of conduct.  It ranges from the most serious type of plagiarism that warrants disqualification and debarment for the maximum period of five years, to less serious or minor plagiarism that merits a short period of disqualification or debarment.  Thus viewed, the fact that plagiarism is placed in the most serious category of misconduct only serves to show that plagiarism, in the worst type, will attract the most severe penalty.  It does not lend support to the argument that plagiarism should be narrowly defined and construed to exclude unintentional or negligent acts.   

73.  Secondly, the 2012 Penalty Guidelines are only guidelines that could be departed from in an appropriate case.  The RGC was at liberty to impose a suitable penalty by reference to the nature of the misconduct and the circumstances of the case.  That this is so is well illustrated by the fact that some of the professors involved in considering the complaint against the applicant had recommended a warning letter or shorter period of disqualification or debarment^[29].

74.  The applicant also drew support from the fact that “double-dipping”^[30] is also within the “very serious” category of misconduct.  It was submitted that as double-dipping could not be committed unintentionally, plagiarism should exclude unintentional acts.  The short answer is that there is no evidence before the court to show that double-dipping as defined in the guidelines cannot be committed unintentionally.

75.  In any event, for the reasons discussed in section F1 above, whether unintentional plagiarism should or could be regarded as “very serious” impropriety and come within the most serious category of research misconduct is a matter that an academic body such as the RGC is best placed to determine.  If, owing to academic conventions or considerations of preserving academic and research integrity and the integrity of the funding process, the academic body takes the view (as it did in the present instance) that failure to attribute, though regarded as serious misconduct, does not necessarily have to involve dishonesty, it should be entitled (and it will not be improper) to describe unintentional or negligent acts as plagiarism.  The Court is not in a position to intervene or review.   

76.  For the above reasons, I do not find any merits in the Alignment Argument and reject it.

F.2.3 The Ambiguity Argument

77.  As for the Ambiguity Argument, the applicant argued that as the RGC had not defined plagiarism and the meaning of the word was ambiguous in that it could be narrowly or widely defined, fairness therefore demanded that the ambiguity be resolved in favour of the applicant. In support of his contention that the meaning of plagiarism is ambiguous, the applicant referred to [30] of the judgment and the case of Linda Flanagan v University College Dublin [1988] IR 724, 731. 

78.  In section F of the judgment, the Judge dealt with the Lack of Definition Ground (see D2 above).  After holding that the choice between different definitions of plagiarism requires knowledge of academic conventions on the use of references in academic work, the Judge pointed out that the applicant had not shown any authority that gave an affirmative and exclusive definition for plagiarism as requiring intention^[31].  She went on in [30] of the judgment to contrast the position by referring to Black’s Law Dictionary, cited by the respondent, which gave several definitions of plagiarism as follows:

“30. On the other hand, Mr Wong SC refers to Black’s Law Dictionary, which contains several definitions of plagiarism:

(a) “The deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own; wrongful appropriation of another’s expression of ideas, or of the ideas themselves, by slight variation of expression; specif., the act of stealing passages from someone else’s compositions, … Generally, plagiarism is immoral but not illegal.” This definition does not require intention.

(b) “Plagiarism … is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone - … a neglectful professor, … - falsely claims someone else’s words, … as his own.” This requires knowledge of falsity.

(c) “An idea, phrase or story that has been copied from someone else’s work without attribution ...” This definition does not require intention.”

79.  The applicant took issue with the Judge’s analysis of the meaning of plagiarism. However, what the Judge was doing was to draw attention to the several definitions of the word given in Black’s Law Dictionary to make the point that there was no affirmative or exclusive definition of plagiarism which required the element of intention.  Even accepting the applicant’s criticism that the Judge was wrong in regarding the definition in [30(a)] as not requiring intention and/or the definition in [30(b)] as requiring knowledge of falsity, it would not have any bearing on the point that was made by the Judge, namely none of the authorities cited show an affirmative or exclusive definition of plagiarism as requiring intention.

80.  The applicant also submitted that this part of the judgment supports his case that the meaning of plagiarism is ambiguous, I do not agree.  The quote from Black’s Law Dictionary only serves to show that the word plagiarism bears more than one linguistic definition.  As Mr Wong submitted, it does not mean that the meaning of plagiarism is ambiguous when applied to the present context, or that the definition adopted by the RGC is perverse or irrational.

81.  As for the case of Linda Flanagan, it concerns a judicial review brought by a student accused of plagiarism against the decision of the disciplinary committee on the ground that the procedures adopted did not comply with natural justice.  In the passage relied on by the applicant, Barron J held that:

“The present case is one in which the effect of an adverse decision would have far-reaching consequences for the applicant. Clearly, the charge of plagiarism is a charge of cheating and as such the most serious academic breach of discipline possible. It is also criminal in its nature. In my view the procedures must approach those of a court hearing. The applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the alleged offence.”

I am unable to see how the passage supports the applicant’s contention that the meaning of plagiarism is ambiguous. 

82.  In my view, whether the meaning of plagiarism is ambiguous must be considered in context.  The fact that a word admits of more than one definition does not mean that its meaning is ambiguous.  It depends on the context in which the word is applied, and if it is clear that in that context the word bears a commonly adopted or understood meaning, then there is no ambiguity.  In the present case, the word plagiarism is being considered in the context of academic misconduct in relation to academic writing and, more specifically, research proposal.  The question is whether plagiarism has a commonly accepted meaning among the academia or there are different understandings as to its meaning. 

83.  In this regard, it is apt to look at the evidence in the case.  All the academics involved in the disciplinary process had the Institutional Report and were aware of the findings of the IC/CityU that the non-attribution was negligent and unintentional and the view of CityU’s Vice-President that plagiarism was not substantiated.  They nevertheless found it was a case of plagiarism.  It is evident from the comments and views they gave that they did not have any problem with the meaning of plagiarism or find any ambiguity in the meaning of the word. Significantly, too, none of the academics questioned whether the applicant’s act was plagiarism or disputed that the complaint of plagiarism was established against him.  

84.  In the IWG, the First and Second Readers expressly found it was a case of plagiarism while the Chairman in recommending disqualification for one year, implicitly agreed that it was a case of plagiarism.  In the DC, one member regarded it was a clear case of plagiarism with another considering it a serious case.  A third member agreed with the First Reader while saying it was a case of negligence, which shows he regarded negligent non-attribution was plagiarism.  A fourth member expressed that a warning letter would be sufficient without disputing that it was a case of plagiarism.  As for the Chairman of the DC, he agreed to disqualification and debarment for the current year plus one year, thereby agreeing with the IWG’s conclusion that the complaint of plagiarism was substantiated.  The RGC agreed with the DC.  In finding that plagiarism was substantiated, it referred to the applicant’s failure to take care thereby misleading the reviewers, which shows that it considered negligent non-attribution was plagiarism. 

85.  In the Appeal Board, two members expressly found it was a case of plagiarism, while the third member implicitly agreed it was plagiarism when he said it was not outright plagiarism justifying the maximum period of debarment but was a serious error and recommended debarment for one year.  The DC (Appeal) agreed it was a clear case of plagiarism even though it accepted it was not committed intentionally.  The RGC accepted the report of the DC (Appeal) and referred to the view that plagiarism could be committed intentionally or unintentionally.

86.  Mr Strachan submitted that there was no sign that: (1) the DC or the RGC had any discussion or given consideration to whether the notion of plagiarism embraced unintentional as well as intentional conduct; (2) the IWG, DC or RGC had made use of their knowledge of academic conventions or their academic expertise; (3) the members of the IWG, DC, RGC and the tribunals involved in the appeal stage had considered the meaning of the word plagiarism should be understood in the context of the 2012 Penalty Guidelines (i.e. the Alignment Argument), or they had appreciated that the word plagiarism was ambiguous and the ambiguity should be resolved in favour of the applicant.     

87.  These submissions are problematic. Firstly, the DC and the RGC were fully aware that they were considering a case of plagiarism, in which the applicant’s explanation and the IC/CityU’s findings were that it was a negligent and unintentional non-attribution.  They undoubtedly knew that the issue to be resolved was whether the applicant’s negligent and unintentional failure amounted to plagiarism, and must have given consideration to it before making their recommendation or decision.  Secondly, given that members of the IWG, DC and RGC were addressing an issue of academic misconduct, it is unrealistic to suggest that they would not or had not resorted to their knowledge of academic conventions or their academic expertise. After all, they are not lawyers and cannot be expected to trace and articulate each and every step of their deliberation and thinking process.  Thirdly, whether the members of the IWG, DC, Appeals Board and RGC had regard to the 2012 Penalty Guidelines is immaterial to the present challenge, which concerns the rationality and substantive fairness of the RGC’s decisions, and not that the RGC had failed to take into account relevant considerations.  The fact that they did not appear to have considered the word plagiarism was ambiguous only serves to reflect that they did not find any ambiguity in the meaning of the word.  It should also be noted that several of the academics had stated that plagiarism had a number of definitions but it was commonly understood to include both intentional and unintentional acts^[32].

88.  Mr Strachan also placed considerable emphasis on the fact that in the 2 May 2014 Letter, the Vice-President of CityU, after endorsing the findings of the IC/CityU, stated that plagiarism was not substantiated.  Two points have to be made on this. First, the Vice-President had not elaborated on the view expressed.  He did not explain the basis or considerations underlying the view when the IC/CityU had expressly refrained from coming to a conclusion on whether plagiarism was substantiated.  Second, it would appear that this view is at odds with what was stated in the Academic Honesty webpage^[33] and the Run Run Shaw Library webpage of the CityU (see [28] and [31] above), namely plagiarism could be committed unintentionally or accidentally.                    

89.  In short, the evidence does not establish that the academia considers the word plagiarism in the particular context of this case is ambiguous or only refers to intentional acts.  As the contention that the meaning of plagiarism is ambiguous is not made out, it is not necessary to consider the argument on the canon of statutory interpretation that the court should avoid adopting a construction which penalizes a person when the legislator’s intention to do so is doubtful.  The Ambiguity Argument is to be rejected.

90.  In any event, as noted above, the applicant’s challenge under this ground is the rationality and substantive fairness of the RGC’s decisions.  As found by the Judge, the applicant had always known what issue he was facing. His defence was consistent and focused all along, arguing that the non-attribution was an oversight, plagiarism had to be intentional and his unintentional conduct was not plagiarism^[34]. There was no complaint of ambiguity in the meaning of plagiarism in all his representations at all levels of the investigation.  In these circumstances, and in light of the discussions in section F1 above and the unanimous conclusion of the academics involved in the disciplinary process, the RGC cannot be said to have acted irrationally, perversely or manifestly unfairly in including unintentional conduct as plagiarism.

91.  For the reasons set out above, the challenge under Ground (2) is not made out.

F.3.  Ground (3): Lack of reasons

92.  The thrust of the applicant’s arguments under this ground is that there was no explanation as to why the DC or DC (Appeal) and RGC adopted a definition that did not require intention to be an element despite that plagiarism has different definitions, and that the applicant was prejudiced by not knowing whether they had taken into account relevant and essential factors, such as those advanced under Ground (2) above, and whether they had considered irrelevant matters.   

93.  The RGC supported the Judge’s reasons (at [66] to [70] of the judgment) and submitted that the alleged failure to give reasons did not prevent the applicant from advancing his case. Since the burden is on the applicant to show that he was prejudiced by the lack of reasons, if he cannot show that he could have done something to improve the situation, he has not suffered prejudice to warrant the court’s intervention.

94.  The relevant legal principles, which are not in dispute, have been summarized at [60] to [65] of the judgment as follows:

“60. Sufficiency of the reasons must be assessed against the context of its decision (including the legal framework in question), the factual circumstances of the case, common sense and the particular history of a matter. That said, where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the courts are entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork. See Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, §98, Stock JA.

61. The applicant bears the burden of showing that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision: South Buckinghamshire District Council v Porter (No.2) [2004] 1 WLR 1953, §36, Lord Brown of Eaton-under-Heywood.

62. If the applicant cannot demonstrate that he could have done something to improve the situation or his chance of success if given fuller reasons, he has not suffered prejudice to warrant the Court’s intervention: Leung Sze Ho Albert v Bar Council [2016] 5 HKLRD 542, §73 (CA).

63. Even if the reasons given are inadequate, the appropriate relief is to order mandamus requiring the decision-maker to give proper reasons for its decisions, rather than to quash the decision altogether: Hong Kong Canadian International Hospital Foundation Ltd v Secretary for Justice, HCAL 131/2006, 4 May 2007, §100, A Cheung J, as he then was.

64. Where the decision was made through the collective effort of an administrative body rather than by a single person, the decision should be judged by the general tenor of the discussion rather than individual views expressed by the members of the administrative body. R (Enstone Uplands & District Conservation Trust) v West Oxfordshire DC [2009] EWCA Civ 1555, §15 (Sullivan LJ).

65. Provided that the decision sets out clearly the grounds on which the decision has been reached it is unnecessary that all the thinking which lies behind it should also be made available: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, §170 Lord Clyde.”

95.  The duty to give reasons only requires a tribunal to state its decision in a form sufficient to make clear to the losing party why he has lost, and the duty is discharged if, having regard to the issues and nature of the evidence, the reasons for the decision are plain, either because they have been set out in terms or because they are implicit.  I agree with the Judge’s holding that the DC, DC (Appeal) and RGC had adequately explained their decisions, and that the general tenor of their decisions showed that while they accepted the applicant’s case that the non-attribution was due to oversight and negligence, they considered his conduct amounted to plagiarism which included intentional and unintentional acts. 

96.  I also agree with the Judge’s view that the applicant had failed to show he was prejudiced by any lack of reasons or that he was prevented from advancing his case.  Throughout the disciplinary process, the issue engaged is whether plagiarism extended to unintentional or negligent act.  The applicant was well aware of this and he had consistently argued that plagiarism did not have a standard definition, and given the seriousness of the allegation of plagiarism and its consequences, the definition which is most favourable to him should be adopted.  Notwithstanding the arguments advanced in this appeal, the applicant has not demonstrated that his chance of success would have been improved had fuller reasons been given.        

97.  In short, the applicant knew why he had lost.  He was able to put forth arguments to address the core issue in dispute.  Even if the reasons were somehow inadequate, he has failed to show that he has been substantially prejudiced.  There is no basis to interfere with the Judge’s refusal to give leave on this ground.  Ground (3) is accordingly not made out.

F.4.  Ground (4): Penalty

98.  Ground (4) relates to the penalty imposed by the RGC.  The Judge granted leave to judicially review the Appeal Decision in relation to the penalty imposed on the applicant.  Although the Judge found that in considering the applicant’s appeal, the RGC erred in taking into consideration the New Penalty Guidelines which were not in force when the applicant made the funding application, she declined to grant any relief and dismissed the judicial review. 

99.  The applicant took issue with the Judge’s reasons for refusing to grant any relief (see [47] above).  First, it was submitted that the Judge, in considering that the penalty had been served and there was no point in remitting the matter to the RGC, failed to take into account the impact of the penalty on his career and personal life.  Second, it was said that the Judge erred in concluding that the matter had become academic as she failed to take into account the possibility of cases of unintentional plagiarism arising in the future, and she also erred in holding there was no wider public interest involved.  Third, the Judge was further said to have erred in holding that while the Appeal Decision had wrongly taken into account the New Penalty Guidelines, the Decision and the DC did not so err and the two-year debarment imposed by the Decision or the DC was not irrational or perverse.  The Judge should have quashed the penalty and should not have relied on the reasoning of the DC, which was another decision-making body, to justify not quashing the penalty imposed by the RGC.

100.  The applicant asked for an order quashing the penalty imposed by the RGC.  He submitted that it would be unjust to remit the matter to the RGC for a fresh determination, and asked us to give either a declaration or an indication that the appropriate penalty would have been a warning letter.

101.  The RGC’s response to the submissions is that the penalty had been served and the issue between the parties has become academic.  This being the case, the court should exercise its discretion to entertain the matter only exceptionally and with caution, and when there is good reason in the public interest to do so, such as where there is a discrete point of law not involving detailed consideration of the facts and there is a large number of similar cases pending or expected to arise: Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at [20]. It was submitted that the applicant’s personal reputation does not qualify as public interest, the possibility of future cases of unintentional plagiarism is speculative, especially in light of the definition of plagiarism and the New Penalty Guidelines adopted by the RGC, and the two-year debarment was well within the reasonable range of the RGC’s response to the applicant’s conduct. There is nothing to suggest that a lighter sentence ought to be or would be likely to be imposed given the Decision is not tainted by any error, and it is thus within the Judge’s discretion to refuse to act in vain.

102.  The RGC opposed the applicant’s request that this Court declares or gives an indication as to the appropriate penalty.  It pointed out that the court in judicial review would not substitute its decision for that of the decision-maker, and the matter in question is not one that the court would have the institutional expertise to decide.    

103.  As the Judge rightly held, the DC (Appeal) and the RGC when considering the applicant’s appeal committed an error of law in taking into account the New Penalty Guidelines, which were not in force when the applicant submitted the Application and were thus inapplicable. This being the case, the RGC’s decision to dismiss the applicant’s appeal against the penalty imposed is liable to be quashed.  The Judge, however, refused to quash the decision or grant any relief for the primary reason that the matter has become academic given the penalty had already been served^[35] and there is no point to remit the matter back to the RGC.  With respect, the Judge fell into error in coming to this view.      

104.  The fact that the penalty had already been served by the time of the judicial review proceedings does not mean that the matter has become academic or that no useful purpose can be served by granting the relief sought.  As Mr Strachan pointed out, the penalty would have an impact on the applicant personally and professionally, which probably would last beyond the two-year debarment period.  That the applicant had already been subject to two-year debarment is a matter that the RGC will have to give consideration when the matter is remitted for fresh determination of the appeal against the penalty imposed.  It is, however, not a ground for denying relief to the applicant.  Further, the fact that the Judge saw little point in remitting the matter back to the RGC does not justify a refusal to quash the decision when it is erroneous in law in the first place.   

105.  Accordingly, while the granting or refusal of relief is a discretionary judgment, I would allow the appeal against the Judge’s refusal to grant relief and dismissal of the judicial review. While I would quash the RGC’s decision on the penalty, I am not prepared to accede to the applicant’s request to grant a declaration or give a strong indication that the appropriate penalty was a warning letter.  This is because the court’s role in judicial review is supervisory and, as a general principle, would not substitute its decision for the original decision-maker’s: De Smith’s Judicial Review (8^th ed. 2018) at §18-031. Unlike in the UK^[36], section 21K(5) of the High Court Ordinance, Cap. 4 and Order 53 rule 9(4) of the Rules of the High Court have not extended the jurisdiction of our court when quashing orders to enable it to substitute its decision for that of the original decision-maker.  The court will be usurping the function of the RGC if we were to declare or indicate what we consider is the appropriate penalty to be imposed.

106.  Having regard to the fact that the impugned decision took place in 2017 and the penalty originally imposed had been served, I am of the view that the appropriate course is to (1) quash the decision of the RGC upholding the penalty previously imposed on the applicant; and (2) remit the matter to the RGC for reconsideration of the applicant’s appeal against the penalty previously imposed, pursuant to Order 53 rule 9(4) of the Rules of the High Court.  The applicant argued that it would be unjust to remit the matter back to the RGC.  In so submitting, the applicant probably has not considered that the decision being impugned is the Appeal Decision.  The quashing of the RGC’s decision under the Appeal Decision to uphold the penalty, without at the same time remitting the matter for reconsideration of the appeal will mean the penalty previously imposed is there to stay.

G.   Conclusion and costs

107.  For the above reasons, I would allow the applicant’s appeal limited to setting aside the Judge’s dismissal of the judicial review against the decision of the RGC to uphold the penalty imposed, and dismiss the applicant’s appeal against the Judge’s refusal to grant leave to apply for judicial review on the other grounds in the Re-Amended Form 86.

108.  In view of the very limited success of the applicant and that he has lost on all the other grounds, which had taken up a substantial part of the submission and hearing time, I would make an order nisi that he pays the RGC 50% of its costs of the appeal, including any costs reserved, to be taxed if not agreed.  As to the costs below, I would similarly make an order nisi that the applicant pays the RGC 50% of its costs below.

H.  Disposition

109.  Accordingly, I would make the following orders:

(1)  The applicant’s appeal is allowed limited to setting aside (a) paragraph 4 of the order dated 18 March 2020 dismissing the judicial review against the respondent’s decision on the applicant’s appeal, upholding a penalty debarring the applicant from applying under all research fund schemes administered by the University Grants Committee or the respondent for a term of two years; and (b) the costs order in paragraph of the order.

(2)  The applicant’s appeal against the Judge’s refusal to grant leave to apply for judicial review of the respondent’s decision on the applicant’s appeal, upholding the finding that plagiarism was established against the applicant in respect of the research proposal submitted for the SRFDP/RGC ERG Joint Research Scheme is dismissed.

(3)  An order of certiorari to quash the decision of the respondent contained in a letter dated 7 July 2017 dismissing the applicant’s appeal against the penalty previously imposed on him for the finding of plagiarism and upholding the penalty.

(4)  An order remitting the matter to the respondent for reconsideration of the applicant’s appeal against the penalty imposed for the finding of plagiarism.

(5)  An order nisi that the applicant pays the respondent 50% of the costs of the appeal, including all costs reserved, and 50% of the costs below.

Hon Barma JA:

110.  I agree with the judgment of Chu VP.

Hon G Lam JA:

111.  I agree with the judgment of Chu VP.