TSE WAI LOK WALTER AND ANOTHER v. THE CONVOCATION OF THE CHINESE UNIVERSITY OF HONG KONG

HCAL 1971/2023

[2026] HKCFI 1083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1971 OF 2023

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J U D G M E N T

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A.  Introduction

1.  The 1^st Applicant and the 2^nd Applicant are alumni of The Chinese University of Hong Kong (“CUHK”). On 28 January 2023, they applied to run in the election (“SC Election”) for membership of the Standing Committee (“SC”) of the Convocation (“Convocation”) of CUHK. By two decisions (“Decisions”) made on 30 January 2023 and communicated to the Applicants by email dated 3 February 2023, the SC decided that both Applicants were ineligible to stand in the SC Election.

2.  By Form 86 dated 2 November 2023, the Applicants sought leave to apply for judicial review so as to challenge the Decisions. I gave directions to bring the application to a ‘rolled-up’ hearing, which was eventually heard on 20 December 2023. The Applicants were represented by Mr Jeffrey Tam of Counsel. The Convocation was represented by Mr Abraham Chan SC leading Mr John Leung of Counsel.

3.  The Applicants put forward three intended grounds of challenge: (1) the Applicants were not afforded an opportunity to make representation before the Decisions were made; (2) the SC of the Convocation failed to give reasons for the Decisions; and (3) the Decisions are therefore Wednesbury unreasonable. There is no dispute that the third ground stands and/or falls with the first two grounds, and there are no complaints as to the rationality of the Decisions which are not already canvassed in the first two grounds. I will therefore only consider the first two grounds below.

4.  The Convocation contended that the leave application was about 6 months out of time and there was no good reason for the Court to grant an extension of time, that the Decisions are not amenable to judicial review, that the proposed challenge is academic and futile, and that the challenge is anyway meritless.

5.  At the conclusion of the rolled-up hearing, I reserved my decision.

6.  This is my Judgment.

B.  The Convocation, the SC and the SC Election

7.  As it will become clear in the analysis below, the public character (or the lack thereof as suggested by the Convocation) of the Decisions will feature heavily in all aspects of the proposed challenge, i.e. the amenability of the Decisions, whether the Court should nonetheless entertain the proposed challenge albeit that it has become academic, the level of procedural safeguards required for the decision-making process of the Decisions, and whether an extension of time ought to be granted. To this extent, it is necessary to delve into some details of the nature, functions and powers of the decision-maker of the impugned Decisions, as well as the nature and purpose of the Decisions themselves.

8.  Whilst in the Form 86 the Applicants identified the Convocation as the putative respondent, the Decisions were indeed made by the SC of the Convocation. The SC is an organ or a sub-body of the Convocation. The SC, unlike the Convocation, does not exist as a statutory body in the sense that the SC’s establishment, powers and functions are not directly underpinned by statute.

B.1  The Convocation

9.  CUHK is established and governed by the Chinese University of Hong Kong Ordinance Cap 1109 (“CUHKO”). The CUHKO creates three statutory bodies in respect of the management of CUHK, being (1) the Council, (2) the Senate and (3) the Convocation of CUHK. The relevant provisions are to be found in sections 6 to 9 of the CUHKO:

6. Provision for Council, Senate and Convocation

There shall be a Council, a Senate and a Convocation whose respective constitutions, powers and duties shall be as prescribed by this Ordinance and the Statutes.

7. Powers and duties of the Council

Subject to this Ordinance and the Statutes, the Council shall—

(a) be the governing and executive body of the University;

(b) have the management and control of the affairs, purposes and functions of the University;

(c) have the control and management of the property and financial affairs of the University including the property of the constituent Colleges, but in the exercise of such power of control and management in respect of any immovable property of any original College or Shaw College, the Council shall not alter the use of any such property without the prior consent of the Board of Trustees of the College concerned;

(d) make such University appointments as it thinks proper;

(e) have power to approve the fees charged by the University in respect of approved courses of study;

(f) provide for the custody and use of the University’s seal.

8. Powers and duties of Senate

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;

(b) the conducting of examinations for students;

(c) the award of degrees other than degrees honoris causa;

(d) the award of diplomas, certificates and other academic distinctions of the University.

9. Composition and function of the Convocation

Subject to this Ordinance and the Statutes, the Convocation shall consist of the graduates and such other persons as may be prescribed by the Statutes and may make representations to the Council and the Senate upon any matters affecting or concerning the interests of the University.

10.  Broadly speaking, the Council is the governing and executive body of CUHK which has the management and control of the affairs, purposes, functions, property and financial affairs of CUHK. The Senate has a much lesser role in that its power is confined to control and regulation of instruction, education and research, the conducting of examinations for students and the award of degrees and diplomas. The Convocation serves as an advisory body by “[making] representation to the Council and the Senate”.

11.  The establishment and composition of the Convocation are governed by Statute 18 of the “Statutes of the Chinese University of Hong Kong” (“Statutes”) to be found at Schedule 1 of the CUHKO. For the present purpose, it could be said that the members of the Convocation are graduates of CUHK. There is no evidence before the Court as to the exact number of graduates from CUHK at the time of the Decisions. But Mr Tam said that, as a matter of common sense, there must have been many CUHK graduates since the establishment of the university, to the tune of dozens of thousands.

12.  Therefore, it is fair to say that the powers of management of CUHK are mostly vested in the Council, except matters concerning education, research, examination and the award of degrees which are vested in the Senate. The Convocation, in contrast, has a much minor role to play in the running of CUHK. It appears the Convocation is intended as a platform by which graduates of CUHK could have some participation or influence over the management of CUHK by making representations to the bodies which directly manage the university, i.e. the Council and the Senate. Other than making representation, at the time of the Decisions, Statute 18(7)(1) also provides for election of more than 3 members of the Convocation to sit on the Council. The number was later reduced from 3 to 1 through legislative amendment in 2023.

13.  The Convocation is governed by its Constitution, its Rules of Meeting, and its Rules of Election. These provisions are not directly set out in the CUHKO or its subsidiary legislation. But they are created or validated by powers set out in the Statute. Statute 18(10) of the CUHKO provides that the Constitution shall be approved by the Council. The Rules of Meeting and the Rules of Election are, in turn, to be found in Schedule 1 and Schedule 2 of the Constitution respectively.

14.  The objectives of the Convocation are set out in Article 3 of its Constitution:

(a) To further the activities, interests and objectives of the University;

(b) To promote good relations between the University and the general public;

(c) To strengthen the relationship between members of the Convocation and other members of the University;

(d) To promote the interests of members of the Convocation; and

(e) To raise funds for carrying out the objectives of the Convocation.

15.  The powers and functions of the Convocation are set out in Article 17 of the Constitution:

(a) to elect a Chairman and a Vice-Chairman from among the members of the Convocation;

(b) to discuss any matter relating to the University, including (but not limited to) any matter referred to it by the University Council or the Senate, and to report its views on such matters to the University Council or the Senate as the case may be;

(c) to elect such number of members of the Convocation, as determined by the University Council, to be members of the University Council, provided that no person who holds an appointment in the University shall eligible for such election;

(d) to solicit funds from amongst its own members and from others for the purposes of the Convocation and the University and to determine the manner in which they may be used;

(e) to make, rescind or amend by resolution at the Annual or Special Meeting, the procedure of its Annual and Special Meetings, the conduct of its election, and the appointment of Committees;

(f) to do any other acts necessary to give effect to the powers conferred on the Convocation by the Ordinance or the Statutes:

(g) to perform such other functions as may be delegated by the University Council and the Senate.

16.  As shown in Article 17(e) of the Constitution, it is up to the Convocation to determine the rules governing the conduct of its election.

B.2  The SC of the Convocation

17.  The existence of the SC and its composition are provided for in Article 18 of the Constitution. Article 18 provides that there shall be a SC which consists of (a) the Chairman of the Convocation, (b) the Vice Chairman of the Convocation, (c) the immediate past Chairman, (d) six members elected at an Annual or Special Meeting, and (e) five members nominated by the Federation of Alumni Association.

18.  The duties and powers of the SC are set out in Article 25 of the Constitution, which include:

(a) to perform functions in furtherance of the objectives of the Convocation;

(b) to advise and to make recommendations to the Convocation on matters relating to the University;

(c) to convene Annual or Special Meetings;

(d) to inform the Convocation regarding University matter;

(e) to enter into communication directly with the University Council and Senate on any matter relating to the University:

(f) to implement the resolutions of the Convocation:

(g) where necessary, to prepare the budget of the Convocation to be approved in an Annual Meeting;

(h) to authorize disbursements out of the budgetary and other funds of the Convocation in the furtherance of the objectives and powers of the Convocation, and to present the financial reports in and Annual Meeting;

(i) to establish, modify or abolish sub-committees, define their terms of reference and refer any matter to such sub-committees, define their terms of reference and refer any matter of sub-committees for consideration. All such sub-committees shall periodically report their proceedings to the Standing Committee and shall be subject to dissolution of the Standing Committee

(j) to fill any casual vacancy among the offices of the elected members by co-opting another member of the Convocation...

(j1) in the event that the office of an elected member is vacated upon the expiry of his term of office, and that there is no eligible candidate being nominated, the retiring officer may continue to hold his office for another one-year term subject to his consent and the approval of the Standing Committee;

(k) to make, rescind or amend Rules, which shall take effect and be binding, if passed at either the Annual or Special Meeting and approved by the University Council;

(l) to do any other acts necessary to give effect to the power conferred on the Convocation by the Ordinance or the Statues.

19.  Article 31 provides that the Convocation shall elect no more than three members of the SC to be members of the Council. Therefore, only a member of the SC may represent the Convocation to sit on the Council. But membership on the SC does not automatically transfer into a seat on the Council. Further, as shown in Article 17(c) of the Constitution, whether a representative elected by the Convocation could sit on the Council is apparently subject to the approval of the Council.

B.3  The SC Election

20.  The seats for which the Applicants applied to run were the seats that fall within category (d) of Article 18 – i.e. “six members elected at an Annual or Special Meeting”. Article 20 provides that the election for such elected seats (i.e. the SC Election) shall take place by ballot at an Annual or Special Meeting. Article 22 provides that one third of the elected members shall retire by rotation annually, but shall be eligible for re-election. Therefore, if the scheme runs smoothly, every year 2 elected SC members will retire and their seats (with a term running for 3 years) will be elected.

21.  The SC Election was to be held in the 2022 Annual Meeting (“2022 AGM”). Due to the outbreak of Covid-19, the 2022 AGM was not held in 2022 and was postponed to 25 February 2023. The elected seats that the Applicants intended to run for were supposed to have a term running from the 2022 AGM to 31 August 2025, i.e. 2.5 years rather than the usual 3-year term. There were two such vacancies to be elected in the 2022 AGM.

22.  Article 30 of the Constitution provides for the conditions where members of the SC shall be vacated. It is the position of the SC that it had placed some reliance on Article 30(b) and 30(d) in reaching the Decisions in refusing to validate the Applicants’ candidacy. Article 30 provides as follows:

30. The office of the Chairman or Vice-Chairman of the Convocation or any member of the Standing Committee shall be vacated if the person concerned:-

(a) ceases to be member of the Convocation; or

(b) is convicted of any crime which shall be judged by the Standing Committee to be of an immoral, scandalous or disgraceful nature; or

(c) has suffered from actual physical or mental incapacity which shall be judged by the standing Committee to prevent the proper execution of the duties of his office; or

(d) has conducted himself in such a manner which shall be judged by the Standing Committee to be of an immoral, scandalous or disgraceful nature; or

(e) resigns his office by notice in writing to the Standing Committee.

23.  The rules governing the SC Election are to be found in the “Rules of Elections” which are made by the Convocation under Article 33(b) of the Constitution, and can be found at Schedule 2 of the Constitution:

(1)  Rule 3 provides that elected members of the SC shall be elected by the Convocation.

(2)  Rule 6 provides that the Chairman of the Convocation shall serve as the Returning Officer.

(3)  Rule 7 provides that the Secretary of the Convocation shall serve as the Deputy Returning Officer.

(4)  Rule 10 sets the criteria for the eligibility of candidacy for different offices. Broadly speaking, the key criteria for elected offices being that the candidate shall be a member of the Convocation and an ordinary resident in Hong Kong who has gathered 10 nominations from members of the Convocation.

(5)  Rule 12 provides that the Deputy Returning Officer shall prepare lists of all eligible candidates.

(6)  Rule 13 provides for the power for SC to determine the eligibility of candidates:

The lists of candidates shall be validated by the Returning Officer. Should there be any dispute to the eligibility of any candidate, it shall be resolved by the Standing Committee in the absence of the candidate(s) in question.

24.  Except that the SC shall “resolve” such dispute “in the absence of candidate(s) in question”, there are no other rules governing how the SC should make such a decision.

C.  The Decisions and the Aftermath

C.1  The Applicants’ Intention to Run

25.  As said, the SC Election was to be held during the 2022 AGM, which was to be held on 25 February 2023. There were two vacancies for elected SC members, with a term running from the 2022 AGM to 31 August 2025. The Applicants applied to run for those two seats. Besides the Applicants, there were two more Applicants who applied to be the candidates for those seats.

C.2  The Applicant’s criminal convictions and previous conduct

26.  It is undisputed between the parties that the 1^st Applicant had been sentenced to 8 months’ imprisonment in June 2021, after being convicted of multiple criminal offences, including unlawful assembly, contravention of prohibition on face covering, possession of offensive weapon and assaulting a police officer in execution of duty. The last offence involves the 1^st Applicant hitting a police officer with a metal pipe. These matters were widely reported in the media.

27.  It was also widely publicized and undisputed between the parties that the 2^nd Applicant had advocated the secession of Hong Kong from China (or “independence of Hong Kong”) when he made a speech as the then President of the Student Union of New Asia College in CUHK in the school year opening ceremony in September 2018.

C.3  The Decisions

28.  The Decisions were made in the SC meeting (“SC Meeting”) which was held on 30 January 2023 at 19:00 hours (7pm) through video conference. After the meeting, the SC notified the Applicants of the Decisions by email dated 3 February 2023. In the emails, in essence, the SC only said that the SC had decided not to approve the Applicants’ candidacy under Rule 13 of the Rules of Elections. It would be fair to say that no reasons were provided in the email. I understand that the SC does not argue that those emails contain reasons or adequate reasons.

29.  But the relevant minutes of the SC Meeting (“SC Meeting Minutes”) do provide a view into the SC’s reasons. The relevant part of the SC Meeting Minutes concerning the Decisions is excerpted below (original in Chinese):

在進行詳細討論前，主席於會上清楚提醒各常委，會議所有討論內容必須保密，絕對不可以對外洩漏。 隨即再就上述收到的表格，做意見交流，會上認為常委會需盡責審慎查證，要點如下：

-  除《選舉章則》第10（a） 列明候選人必須為成員、通常在本港居住，以及最少有10位成員之書面提名外，在核實名單後，倘候選人之參選資格有爭時，需按《選舉章則》第13段，由常務委員會決定之。

-  常委應就全份章程章則有關條文作全盤考慮。

-  會上亦知悉在報章及網頁有報導內容及消息與個別參選人有關。

-  接著，常委會即根據上述原則審閱下列每一名參選人的表格及相關資料，遂一表決是否通過其參選資格； 主席強調所有表決只記錄贊成及反對數目，則不會記名。主席作為選舉主任並不參加投票，各表決結果如下：

Before engaging in detailed discussions, the Chairman clearly reminded all Standing Committee members at the meeting that all discussions in the meeting must be kept confidential and strictly prohibited from being disclosed to outsiders. Following that, members exchanged opinions regarding the aforesaid received [application] forms, and it was considered during the meeting that the Standing Committee should fulfill its duty to verify with care, and the key points are as follows:-

-  Apart from Rule 10(a) of the Rules of Election, which stipulates that a candidate must be member, ordinarily resident in Hong Kong, and nominated in writing by at least 10 members, after validating the list, if there is a dispute regarding a candidates’ eligibility, it should be resolved by the Standing Committee in accordance with Rule 13 of the Rules of Election.

-  The Standing Committee should consider all the relevant provisions in the Constitution and the Rules holistically.

-  It was also noted during the meeting that there were reports and information published on newspapers and websites which related to certain candidates.

-  Based on the above principles, the Standing Committee then reviewed the form and relevant information of each candidate, and resolved whether to approve the candidacy one by one. The Chairman emphasised that all resolutions would be recorded only by the numbers of for and against votes, and not by name. As the Returning Officer, the Chairman abstained from voting.

30.  Then it was recorded that the eligibility of both the 1^st Applicant and the 2^nd Applicant to run in the SC Election were vetoed by a majority of 7 to 1.

31.  It is apparent from the SC Meeting Minutes that the SC did not consider itself obliged to validate the eligibility of a candidates if the criteria set out Rule 10 of the Rules of Election are satisfied. The SC considers itself entitled to also consider all the other provisions in the Constitution and other rules in the Rules of Meeting. But the SC Meeting Minutes do not specify or spell out the exact provisions which were considered or relied upon by the SC.

32.  Whilst the SC Meeting Minutes themselves also do not identify the candidates which were the subject of the “reports and information published on newspapers and websites”, I think it tolerably clear that the subject candidates were the Applicants. But the SC Meeting Minutes does not specify what information was disclosed in those sources.

33.  The Chairman of the SC and the Returning Officer of the SC Election, Mr Yeung Yu Ming (“Mr Yeung”) filed an affirmation dated 3 December 2023 in which he further explained the reasons for the Decisions. Mr Yeung said that, during the meeting, the SC members proceeded to conducted an internet search with the names of each intended candidate to ascertain if there was any publicly available information putting the candidate’s eligibility in dispute. Mr Yeung also said that it was agreed that the SC should deal with each candidate neutrally and impartially, and any unproven rumours, gossip or information not publicly known (such as private disputes concerning any candidate) should not be taken into account. The SC then found out from internet searches about the 1st Applicant’s criminal convictions and the 2^nd Applicant’s secession speech which are already set out above.

34.  Mr Yeung said the other provisions that were considered by the SC as referred to in the SC Meeting Minutes included Article 3 of the Constitution which sets out the objective of the Convocation, which include furthering the interests and objectives of CUHK, promoting good relations between CUHK and the general public, etc. The SC also considered the “text and the underlying spirit” of Article 30, in particular Article 30(b) and (d) which provides that an elected SC member’s seat shall be vacated if he is convicted of any crime which shall be judged by the SC to be of an immoral, scandalous, or disgraceful nature, or if he has conducted himself in such a matter which shall be judged by the SC to be of an immoral, scandalous or disgraceful nature. Mr Yeung said the SC also considered Article 25 which, in effect, empowers the SC to do any acts necessary to uphold the objectives of the Convocation.

35.  Mr Yeung said the SC took considerable time in its deliberation. All but one member of the SC considered that the 1^st Applicant’s conduct/criminal convictions would undermine the objectives of the Convocation, and was scandalous with reference to the text and spirit of Article 30(b) or (d) of the Constitution and his office would very likely have to be vacated even if he were to be elected. Similarly, for the 2^nd Applicant, Mr Yeung said all but one member considered his conduct would undermine the objectives of the Convocation, and was scandalous with reference to the text and spirit of Article 30(b) or (d) of the Constitution, and would put the CUHK and the Convocation in a risky position if he were allowed to be a candidate or elected. Again, his office, even if he were to be elected, would very likely have to be vacated.

36.  These further details about the SC’s reasons of the Decisions set out in Mr Yeung’s affirmation were also largely consistent with the letter dated 8 May 2023 (“LL Letter”) issued by the solicitors acting for the Convocation (i.e. Lo & Lo) in response to the questions raised by the Legal Aid Department (“LAD”) when the latter was assessing the Applicants’ legal aid application.

37.  It is convenient to note here that, putting aside Ground 3 (which as I have said adds nothing beyond Grounds 1 and 2), the proposed grounds of challenge are purely procedural. There is no challenge to the vires of the SC in making the Decisions or the rationality of the Decisions at all. There is no suggestion that the SC did not have the power to make the Decisions as it did, or that it was wrong for the SC to rely on provisions other than Rule 10 of the Rules of Election in “disqualifying” the Applicants from running, or that it was wrong for the SC to take into account the 1^st Applicant’s criminal convictions or the 2^nd Applicant’s secession speech, or that the SC was irrational in considering the said criminal convictions or conducts as of a scandalous nature or as would put the CUHK at a risky position, etc. There is some suggestion in the Applicant’s written submissions that the interpretation of the word “scandalous” could/should be resolved by the Convocation in Annual or Special Meeting, and the Convocation may well reach a different interpretation from the SC. But the Applicants never challenged the SC’s interpretation and application of the Article 30(b) and (d) as a legal error or as being irrational. This interpretation point did not feature in Mr Tam’s oral submissions at the rolled-up hearing.

38.  I note that there were some suggestions from the Applicants that the reasons put forward in Mr Yeung’s affirmation are ex post facto reasons. The Applicants said the SC has produced no contemporaneous records for the reasons given and it is not clear whether the reasons now put forward by Mr Yeung are indeed the original reasons of the SC. I see no merit in this argument. It is unfair to say that there was no contemporaneous records of the SC’s reasons at all. I have already excerpted the relevant part of the SC Meeting Minutes. The SC Meeting Minutes, when read in context and in conjunction with the undisputed media reports concerning the 1^st Applicant’s criminal convictions and the 2^nd Applicant’s secession speech, point to or are at least consistent with reasons which were later set out in the LL Letter and now in Mr Yeung’s Affirmation. Whilst Mr Yeung’s Affirmation was only filed 11 months after the Decisions, the LL Letter was issued about 3 months after the Decisions.

39.  Most importantly, whilst the Applicants suggested that the reasons put forward by Mr Yeung may not the be “original reasons” of the SC, they did not suggest, let alone provide evidence to substantiate, what those “original reasons” might be. In the circumstances, I see no reasons to doubt Mr Yeung’s evidence in this aspect.

40.  Indeed, the Applicants’ suggestion that the reasons put forward by Mr Yeung might not be “original reason” is inconsistent with the 1^st Applicant’s own stance.  It seems clear that before the SC Meeting the 1^st Applicant already thought or believed that the SC might see his criminal conviction as a hurdle to allowing him to run in the SC Election. The 1^st Applicant also seemed to have known that the SC would consider itself entitled to disqualify a candidate even if the criteria set out in Rule 10 of the Rules of Election are met, and that the precise provisions to be relied upon by the SC would include Article 30. This is reflected in his email sent to the SC before the SC Meeting.

C.4  The Applicant’s Email before the SC Meeting

41.  As said, the SC Meeting was held at 19:00 on 30 January 2023. At 17:08, the 1^st Applicant sent an email (“1^st Applicant’s Email”) to the Convocation’s email address. He said he had heard rumours that the SC would hold a meeting that night to discuss the candidacy of the SC Election, and that there were members who were concerned about how certain candidate’s criminal record would affect his eligibility under Article 30(b) of the Constitution. He attached a document containing his response (“1^st Applicant’s Response”) to such concern and said the same could be provided for the SC members’ consideration if the concern was raised.

42.  The document was one-page long. It recited Article 30(b) of the Constitution and said that this Article is only applicable when it comes to vacating the office of someone who is already elected (“解除職務”). Since he had not yet been elected to any office, Article 30(b) did not apply to him. He further recited Rule 10(a) and (b) of the Rules of Election and said that Rule 10 has exhaustively set out all the criteria which could be taken into account by the Returning Officer in considering someone’s eligibility to run in the SC Election. He relied on the principle of “expressio unius est exclusio alterius” in statutory interpretation. In gist, he said that the SC should not take into account his criminal convictions when considering his eligibility. By way of concluding remarks, he said if the SC were to disqualify him from running in the SC Election based on criteria outside Rule 10 of the Rules of Elections, he would consider challenging the decision by all means, including legal action, and to prevent the implementation of the said decision (“本人將考慮以任何方式（包括但不限於法律途徑）挑戰有關決定及阻止有關決定付諸實行”) 。

43.  Indeed, the 1^st Applicant quite accurately predicted the concerns and issues that would be raised against him by some of the SC members. It would be fair to say that the 1^st Applicant’s Response was intended as his own representation in response to his potential disqualification to run in the SC Election. It might be described as a way to get in some retaliation in advance.

44.  But the 1^st Applicant’s Email and the 1^st Applicant’s Response, sent 2 hours before the SC meeting, were not considered by the SC at the SC Meeting. Mr Yeung said he only checked the Convocation’s email account after the SC Meeting. Nonetheless, Mr Yeung said the 1^st Applicant’s Response was later considered by the SC.

45.  Mr Yeung said upon receipt of the 1^st Applicant’s Email, he shared the email with SC members and consulted the honorary legal advisers. The consensus of the SC and the honorary adviser was that the 1^st Applicant’s Response was misconceived. Briefly, the consensus was the Decisions were not made under Article 30(b) of the Constitution, but the SC was entitled to consider the Constitution and the Rules of Elections holistically. Therefore, the 1^st Applicant’s Response would not have changed the Decisions.

46.  The Applicants made a fair point that there was a complete lack of particulars in respect of the specific date, time, list of SC members and/or honorary advisers who participated in the discussion of the 1^st Applicant’s Response. Importantly, Mr Yeung, did not say whether the 1^st Applicant’s Response was considered before 3 February 2023 when the Applicants were notified of the Decisions.

C.5  The Applicants’ Discussion Forms

47.  After the Applicants were notified of the Decisions on 3 February 2023, by email dated 10 February 2023 the Applicants sent 6 “Discussions Forms” (with the 2^nd Applicant as proposer and the 1^st Applicant as seconder) to the Convocation proposing various matters to the discussed in the 2022 AGM. It is indisputable that the matters raised in the Discussion Forms were meant to address the Decisions. That is expressly set out in the 1^st Discussion Form. The matters for discussion as set out in the 6 Discussion Forms were, broadly, as follows: the interpretation of Rule 13 of the Rules of Election, the veto power of the SC members in relation to candidates’ eligibility for the SC Election, Articles 18 and 30 of the Constitution, Performance of the 2022/2023 SC, and Article 22 of the Rules of Meeting.

48.  The Discussions Forms were discussed by the SC in meetings held on 13 and 17 February 2023 respectively. The SC decided not to include them on the agenda of the 2022 AGM. That decision was not the subject of the present challenge. But the Convocation or the SC does rely on the minutes of those two meetings to suggest that the SC originally planned to address or explain the reasons for its Decisions at the 2022 AGM.

49.  The minutes of the SC Meeting dated 13 February 2023 recorded the following resolution (original in Chinese).

第一份及第二份表格的討論事項內容，有關參選人資格事項；常務委員會早前是依章商議討論表決後，決定不通過相關參選人資格。 選舉主任與會員大會上亦會做出相關報告。

The discussion items the 1^st and 2^nd forms concern the eligibility of election candidates; the Standing Committee previously deliberated, discussed and put the matter to vote in accordance with the Rules, in reaching the decision that the relevant candidates were not eligible. The Returning Officer would make the relevant report [or translated as “would address the same” in the Bundles provided to the Court] in the AGM.

50.  The minutes of the SC Meeting dated 17 February 2023 recorded the following (original in Chinese):

就有關孫昊賢校友提出的六項討論事項… 常務委員會亦需按第5次常務委員會會議之議決，於2023年2月17月向有關校友作相關的回覆。

Regarding the 6 discussion items proposed by alumnus [the 2^nd Applicant]...the SC shall, in accordance with its resolution at the 5^th SC meeting [i.e. the meeting on 13 February 2023], reply the relevant alumni on 17 February 2023.

51.  By email dated 17 February 2023, the SC informed the 1^st Applicant of the SC’s decision not to include the matters raised in the 6 Discussion Forms in the agenda for the 2022 AGM. The resolution cited above – that the SC had voted against the eligibility of some candidates according to the Rules and that the Returning Officer “would make the relevant report” in the 2022 AGM – was also set out in the email.

C.6  The 2022 AGM

52.  The 2022 AGM was held on 25 February 2023. But it never got to the point where the Returning Officer of the Chairman could “make the relevant report” about the SC’s decision to veto the eligibility of the 1^st and the 2^nd Applicants. The 2022 AGM was brought to a close prematurely. The parties disputed as to why it was so. Mr Yeung, who chaired the 2022 AGM, blamed the Applicants for their disorderly conduct which led to the early closure of the 2022 AGM.

53.  Before the 2022 AGM proceeded to the agenda item regarding the SC Election, the 2^nd Applicant raised a motion of non-confidence against Mr Yeung, the Chairman of the AGM. Mr Yeung said when he was about to explain the voting procedure of the motion of non-confidence, the 2^nd Applicant “engaged in disorderly conduct and provocatively shouted that the SC should not waste time and should immediately pass the Chairmanship to his desired member on the SC, otherwise he would continue to raise motions of non-confidence against every other member”. Mr Yeung rejected that demand and proceeded to vote on the 2^nd Applicant’s motion of non-confidence, which was passed by a clear majority of 101 to 26. There was no dispute that the motion of non-confidence was raised and voted upon in accordance with the Rules of Meeting. After the motion of non-confidence was passed, the Vice Chairman considered that it was no longer proper for the meeting to continue and declared the meeting closed pursuant to Rule 21 of the Rules of Meeting. The Applicants do not allege that the Vice Chairman was not entitled to do so under the relevant rules. After the said declaration, the SC members, except one, left the AGM venue. The Applicants along with others occupied the stage to make their own announcement. On 8 March 2023, the SC issued a notice regarding the closure of the 2022 AGM.

54.  The vote of no-confidence against Mr Yeung or the Vice Chairman’s decision to bring the 2022 AGM to an early closure were not the target of the present challenge. The circumstances leading to the early closure of the 2022 AGM were featured because it is the SC or the Convocation’s case that but for the Applicants’ conduct which brought the AGM to an early close, the SC would have explained the Decisions and the Applicants would have had a further chance to make their representation at that meeting.

55.  The parties’ affidavit evidence also covers matters in the months after the 2022 AGM. Most (if not all) of those matters are irrelevant to the present challenge, and I shall not rehearse them here.

D.  The Proper Approach

56.  This application was fought on all fronts. The four broad issues were:

(1)  whether the Court should grant an extension of time to the Applicants;

(2)  whether the Decisions are amenable to judicial review;

(3)  whether the intended challenge is academic/futile, such that the Court should not entertain the proposed challenge; and

(4)  whether there are merits in the two proposed grounds of review – i.e. failure to give the Applicants reasonable opportunity to make representation and failure to give reasons.

57.  At the hearing, Mr Tam and Mr Chan SC dealt with these four issues in slightly different sequence. Mr Tam adopted the order of (1) amenability, (2) futility/academic, (3) merits, and (4) grant of extension of time. But Mr Chan SC said the proper approach must start with the question of any extension of time.

58.  Mr Chan emphasized that there is a strong policy concern in the administration of public affairs and finality that any challenge must be brought within the 3 month period under the rules. The fact that the Form 86 was filed 6 months late means that the Applicants would have to seek the indulgence of the Court in granting extension of time, and an extension should not be granted unless there are good reasons to make an exception. Mr Chan SC said that whether extension should be granted is a ‘gateway’ point. It should be considered first, rather than being left to the very last as if it is only an afterthought after merits of the proposed review have already been considered. Mr Tam did not dispute that extension of time is a ‘gateway’ point, and he agreed that the principles and analytical structure laid down, for example, in AW v Director of Immigration [2016] 2 HKC 393 at §§26-27 (see below) should be employed in approaching the present challenge.

59.  Needless to say, the factors which Mr Chan said in combination should lead to the refusal of extension of time are also relied upon as individual grounds, which in and of themselves are said to be sufficient to resist the present challenge. But logically, I accept that whether the proposed challenge was brought within a time which should be extended, and whether the proposed challenge is amenable to judicial review, should be considered before proceeding to consider the possible futility or the substantive merits of the proposed challenge.

60.  On the other hand, judicial review can sometimes require something of an iterative process, than a linear process. The analysis in a particular aspect may overlap with, reinforce, or detract from the strength of the argument in another aspect. The substantive merits of the proposed challenge would – or at least might – have an impact on the analysis on extension of time. The strength of the public law character of the decision challenged is often not only decisive on determining amenability, but also affects how much procedural safeguard (i.e. the substantive merits in this case) should be afforded to a particular decision-making process, as well as the utility to proceed on a nonetheless academic challenge. The appropriate sequence of analysis for a case depends on the particular facts of that case.

61.  However, in this case, I am persuaded that it is appropriate to deal first with the question of any extension of time, even if that requires (as it does, see below) at least some consideration of the other aspects. I think that best ensures not losing sight of the fact that extension of time is a gateway point. I will do so before going on – as may be appropriate – to deal in more detail with the remaining broad topics in the following sequence: (1) amenability, (2) futility/academic, and (3) merits of the proposed grounds.

E.  Extension of Time

62.  The principles applicable to the grant or refusal of an extension of time within which to apply for leave for judicial review are well-settled. They were set out in the AW case I have already mentioned.

63.  Those principles and the structure can be put as follows:

(1)  Whenever there is a failure to act promptly or within three months, there is ‘undue delay’.

(2)  The Court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(3)  In the public law field, it is essential to scrutinize with care any delay.

(4)  But one must also bear in mind that RHC Order 53 r 4(1) and section 21K(6) of the High Court Ordinance Cap 3 are not intended to be applied in a technical manner.

(5)  As long as no prejudice is caused, the courts will not deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled.

(6)  However, unless a disciplined approach for granting extension out of time is taken, there is a real risk that public administration will be unduly disrupted, and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(7)  What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi-faceted question’, the answer to which would depend on the circumstances of the particular case.

(8)  The following factors, though non-exhaustive, are likely to be of significance: (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the substantive application, (4) any prejudice, and (5) whether there are questions of general public importance.

64.  Mr Chan emphasised that when the proposed challenge is brought late, the Court is entitled to consider all the circumstances and take a broader perspective. He invited the Court to refuse to exercise its discretion to grant an extension, on the basis that:

(1)  There was an unjustified delay of 6 months.

(2)  In terms of amenability, the public character of the Decisions is doubtful. The strength of the public elements is far from a substantial public law concern.

(3)  The challenge is futile and academic. It serves no purpose in practical terms.

(4)  The substantive merits of the proposed challenge are low.

(5)  Contrary to the Applicants’ submissions, the present facts are very far from engaging a serious discussion on the Applicant’s constitutional right to participate in public affairs under the Article 26 of the Basic Law (“BL26”) or Article 21 of the Bills of Rights (“BOR 21”).

65.  The Form 86 was indeed filed 6 months late, which in context is substantial. Mr Chan said that the delay is very substantial if the 6-month delay is viewed against the normal 12-month election cycle. I agree – and I do not think the point is alleviated by the fact that there are subsequent election cycles.

66.  Mr Chan also pointed out that the Applicants had the clear intention very early on to challenge the Decisions by judicial review. Legal action was already threatened in the 1^st Applicant’s Response sent on 30 January 2023 – even before the Decisions. In fact, by 23 February 2023, they had already engaged their present solicitors to issue a letter to Mr Yeung and the SC indicating that they may challenge the Decisions by way of judicial review. The grounds now put forward, i.e. failure to give reasons and failure to give the Applicants a reasonable opportunity to make representations, were already identified.

67.  The Applicants place some reliance on the fact that their solicitors were acting on a pro bono basis in issuing the 23 February 2023 letter, when both the Applicants were fresh graduates from CUHK with little financial means, and who could not afford any adverse costs order against them. They applied for legal aid on 16 March 2023 which was only approved on 11 September 2023. Counsel was only appointed on 20 October 2023 and the Form 86 was settled by Counsel and filed in about two weeks later, on 2 November 2023. Both Applicants had adduced evidence to show that they had been actively chasing for the progress of their legal aid applications and when LAD sought further information or documents, they responded almost immediately.

68.  Nevertheless it is settled that there is no general proposition that the time taken in obtaining legal aid is a good reason for extending time. Even where the Applicant can demonstrate he had exercised due diligence in the making and processing of that legal aid application, the time taken for a legal aid application should not normally be taken as providing good reasons for delay. A litigant who has applied for legal aid and is waiting for the result is in essentially the same position as an any litigant who is unable to afford legal representation. It is important not to place those who apply for legal aid in a better position than those who, through no fault of their own, are forced to represent themselves: see R (Kigen) v SSHA [2016] WLR 723 at §§17-18. But I accept that the time taken to wait for the result of a legal aid application and the Applicant’s diligence (or lack thereof) in processing the legal aid application may be factors for the Court to take into account.

69.  Here, I do not think the Applicants could be accused of lack of diligence in processing their legal aid. But, that in and of itself does not amount to good reason for extending time where the context was of a substantial undue delay of 6 months within the election cycle.

70.  On amenability, I agree with Mr Chan that the public character of the Decisions is at least doubtful, and the answer lies somewhere on the range. Whilst, for the purpose of deciding on an extension of time, it is not necessary to reach a concluded view on the question of amenability, I would nevertheless tend to the view that the Decisions are just on the amenability side of the range. Further, it cannot be seriously disputed that the proposed challenge was academic, and it is at least highly doubtful that the proposed challenge is within the exception identified in the Chit Fai case (see further, below). There may be some apparent first blush merit in the challenge about lack of opportunity to make representations, but it is also likely that there was little or no prejudice from that – pointing to some futility in the challenge.

71.  On balance, and overall in the exercise of my discretion, I do not think there is good enough reason to extend the time. This is of itself fatal to the application.

72.  Nevertheless, and having engaged in some iterative thinking in reaching that conclusion, it is appropriate that I will go on to the other topics in some more detail.

F.  Amenability

73.  The law on determining amenability to judicial review is well settled. For a decision to be susceptible to judicial review, there must be a sufficient public law dimension. There is no universal test to determine whether a decision has had sufficient public law character to render it susceptible to the Court’s intervention by way of judicial review. Important factors include whether the decision-making body is a public body, whether the decision-making body and the decision-making process are underpinned by statute, the nature and function of the decision, etc: see Anderson Asphalt v Secretary for Justice [2009] 3 HKLRD 215 at §57 Tong Wai Yee Winnie v Secretary for Education [2022] HKCFI 1402 at §§127ff.

74.  Mr Tam submitted that it is trite that universities established by statute are public bodies amenable to judicial review: see Leung Chak Sang v Lingnan University [2001] 2 HKC 435, at 442D-443H. Mr Tam also pointed to the case of R (Galligan) v University of Oxford [2001] EWHC Admin 965, where the decision made by a Vice-Chancellor under the Oxford and Cambridge University Act 1932 was held to be amenable to judicial review.

75.  Mr Chan pointed to different paragraphs of Leung Chak Sang, at 444A-554F, which recognize that not all decisions made by universities are amenable to judicial review. References were also made to Li Fung Kei v The Council of the University of Hong Kong [2018] HKCFI 777 at §§38-44, where the Court concluded that whether the Council’s refusal to appoint a professor to a post is amenable to judicial review is “fact sensitive and specific to the present circumstances” but refused to rule on that point on the basis that leave had already been refused on other grounds.

76.  At the hearing, Mr Tam fairly accepted that not all decisions made by universities are amenable to judicial review. That must be right. But he said the Decisions which concern someone’s eligibility to run in the election for SC membership are amenable to judicial review.

77.  Mr Chan argued for the opposite, and in his written submissions put forward the following arguments:

(1)  Whilst the Convocation is a statutory body under the CUHKO, the SC is not. The SC is merely a creature of the Constitution of the Convocation, to further the objectives of the Convocation. The SC is not the Convocation and there is a clear distinction between composition, functions and powers of the SC and the Convocation.

(2)  Under Article 3 of the Constitution, the objectives of the Convocation are to further the interests and objectives of CUHK, rather than the general public. In other words, the Convocation’s function and objectives are to further CUHK’s private institutional interest.

(3)  The SC Election is a private election. It is only open to members of the Convocation ordinarily resident in Hong Kong with sufficient nominations, and only Convocation members can vote.

(4)  The SC Election only determines who can sit as a member on the SC, not who can sit in other offices of the SC, or who can hold elected office in the Convocation, or who can represent the Convocation in Council. In other words, the SC Election is for positions with limited powers and functions.

78.  On the other hand, Mr Tam argued that the distinction between the SC and Convocation is artificial, given the duties and powers are “to perform functions in furtherance of the objectives of the Convocation”: see Article 3 of the Constitution. The SC’s powers are also very wide – “all acts necessary to give effect to the power conferred on the Convocation by the CUHKO or the Statutes”: see Article 25 of the Constitution. The Chairman, Vice-Chairman and Secretary of the Convocation shall also serve as the same for the SC: see Article 18 and 19 of the Constitution.

79.  For myself, I do not think it is profitable focus on whether the SC is distinct and separate from the Convocation. The SC is of course not the Convocation, but the two are closely connected. The SC is perhaps the most important organ of the Convocation. It is true that the creation or governance of the SC are not directly underpinned by legislation. But it is created and governed by the Constitution, which is founded in the legislation.

80.  In my view, it is more profitable to look at the nature and functions of the Convocation, the SC, and the SC Election. What is important is the function being performed by the body whose decision is being impugned, rather than any formal source of power. The closer the function in question is to the main or substantive statutory function of the public body for which it has been established in the first place, the more likely that the decision is amenable to judicial review.

81.  Mr Chan said the objective of the Convocation is to further CUHK’s private institutional interest. Mr Tam said CUHK is a publicly funded institute the purpose of which is to serve an important function in our society, i.e. education, and therefore objectives of the Convocation must be public oriented. In my view, the answer is obviously somewhere in between.

82.  The management and governance of CUHK as a whole must have a public law dimension and the nature and function of the Convocation (and the SC) must be viewed against such backdrop. The objectives of the Convocation – to further the interests and objectives of CUHK – must entail some public law element because the objectives of CUHK could not be merely for the institution’s own good, in neglect of its duties owed to wider society as a publicly funded education institution. That said, the interests of the Convocation, the interests of CUHK and those of the general public may not always align, which is reflected in the objectives of the Convocation.

83.  Article 3 – set out above – obviously recognizes a distinction between CUHK and the Convocation, and that CUHK and the Convocation may have different interests and objectives. Article 3(a) promotes the interests and objectives of CUHK. Article 3(d) and 3(e) promote the interests and objectives of the Convocation. The interests and objectives of CUHK and that of the Convocation are obviously not identical. Similarly, even though CUHK is a publicly funded institution and must serve the public function of education, it does not mean that there is no distinction between CUHK and the general public or that the interests of the two must always align. The nature of the Convocation – which mainly serves as a platform to allow CUHK alumni some influence over the management and governance of CUHK – must necessarily have both public and private dimensions. The Convocation serves the interests of the CUHK alumni, but without neglecting the interests of CUHK and of the general public.

84.  Of course, Mr Tam emphasized that the Decisions were made in an election context, and he referred to the Lau Siu Lai case, (2020) 23 HKCFAR 338. In that case, the petitioner was nominated to run in the 2018 Legislative Council By-election for the Kowloon West Geographical Constituency, but her nomination was decided to be invalid by the returning officer without affording the petitioner a chance to respond to the allegations against her before determining on her nomination. Lau Siu Lai concerns a Legislative Council election, and I do not think the present context – the election of membership to the SC of the Convocation of CUHK – could be likened much to the Legislative Council election. Certainly, I think that not all elections in Hong Kong (and even not all elections in universities) are amenable to judicial review. For example, I would have little hesitation in ruling that the election for different posts in a students’ interests group or society or club in a university is not amenable to judicial review.

85.  In fact, Mr Tam again fairly accepted that not all elections in the university are amenable to judicial review. But he maintained that the SC Election is amenable. He objected to Mr Chan’s labelling the SC Election as a “private election” on the basis that only CUHK alumni can compete and can vote in the election. He said that whilst the exact number of Convocation members is unknown, the number of CUHK alumni must be sizable. He also pointed to Tse Hung Hing v Medical Council of Hong Kong [2010] 1 HKLRD 111, which concerned the constitutionality of a provision under the subsidiary legislation of the Medical Registration Ordinance Cap 161 which disqualifies doctors convicted of offences punishable of imprisonment from being nominated for election or holding office as member of the Medical Council. There, it was agreed between parties (and endorsed by the Court of Appeal) that the Medical Council is a public body and its members are engaged in the conduct of public affairs within the meaning of BOR 21. Mr Tam’s point was that the fact that an election is only open to a certain sector of the population, and only individuals in a certain sector could run in it, does not take that election outside the sphere of “public affairs”.

86.  I accept that is right as a matter of principle. But what is shown by Tse Hung Hing is that amenability turns on the nature of the body, the membership of which is the subject of the election. As is recognized by Mr Tam, the public nature of the Medical Council is evident from the broad spread of its composition and the multifarious functions and duties it has. The Convocation (and the SC) solely consists of CUHK graduates and has very different functions and duties from the Medical Council.

87.  It was common ground between parties that there are no other remedies available, private or otherwise, to the Applicants if the proposed challenge is not amenable to public law scrutiny. At the hearing, I explored with Mr Chan whether the lack of private law remedies would be a factor pointing to public law amenability and remedies. However, Mr Chan submitted – and I accept – that some decisions would simply leave the unsatisfied parties with no remedies, private or public, perhaps because of the lack of importance of the decision itself.

88.  I do not think it is easy to conclude whether the SC is primarily conducting “public affairs” or whether there are sufficient public elements in its role such that the SC Election should be amenable to judicial review. In other words, the position is at least doubtful. It is sometimes said that in borderline cases, the question of amenability is one of impression and degree. Therefore, if forced to a conclusion on amenability, I would tend to the conclusion that the Decisions – which are at some “distance” to the most public of functions – are not amenable to review.

G.  Futility/Academic

89.  The Convocation said the Applicants’ challenge is futile and academic. The Applicants merely asked for an order to quash the Decisions, but did not seek an order that the SC reconsider their eligibility in the SC Election (which was held in the 2022 AGM on 25 February 2023). It is not automatic that the SC would have to reconsider the Applicant’s eligibility even if the Decisions are quashed.

90.  The Applicants said that in principle – and as at the time of the hearing – there were still two SC member vacancies with a term expiring on 31 August 2025. The Convocation pointed out that whilst the Applicants did apply to run for SC memberships again in the 2023 AGM, they applied to run for different positions. The 2^nd Applicant applied to run as Chairman of the SC, whereas the 1^st Applicant applied to run as member with a term expiring on 31 August 2026.

91.  I do not think that Mr Tam seriously disputed that the proposed current challenge was indeed academic. But, relying on the much-cited case of Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, he submitted that the proposed challenge falls within the exceptional category where the Court should entertain a question even though it is academic or hypothetical since “the same point is likely or may well arise as between the same parties”.

92.  Mr Tam said that, even though the 2022 AGM had already closed, the question of whether the SC could disqualify a candidate from standing for the election to SC membership without affording him any reasonable opportunity to be heard and/or without giving reasons is a point which is likely to arise again. The Applicants said they applied to run in the election in the 2023 AGM and were again disqualified (“2023 Decisions”) without having any opportunity to be heard or being given any reasons. Mr Tam said the Court should entertain the proposed challenge which would serve the purpose of giving guidance for the future elections. In the affidavit evidence of both Applicants, they indicated that they are minded to continue to run in the elections of the SC in the near future.

93.  Mr Chan pointed out that the 2023 Decisions were not before the Court, and Mr Yeung did not give evidence on the circumstances leading to those decisions. But Mr Chan also said that even assuming that the Applicants were rejected without having been given a right to be heard, the Applicants’ focus should have been directed to the 2023 Decisions and yet, by the time of the oral hearing, no challenge to the 2023 Decisions had been taken out. Mr Tam answered by saying that that is not required by Chit Fai, and the practical difficulty was that the legal aid certificate granted to the Applicants only covered the Decisions, but not the 2023 Decisions.

94.  Following Chit Fai at §20(3), in deciding whether or not to hear and determine a question which has become academic as a matter of discretion, the Court will closely examine the relevance or utility of the decision. As pointed out by Ma CJHC, it may be easier to demonstrate the utility in the public law sphere than in relation to private rights. But, as already alluded to in the discussion on amenability above, the public and private divide is not a binary dichotomy, but rather a spectrum with some cases clearly falling at the public end, some clearly at the private end, but some falling in the middle.

95.  Ultimately, on the circumstances of this case, I do not think there is any real or practical utility in the indisputably academic challenge, when assessed from the public law perspective.

H.  Merit of Ground 1: Lack of Opportunity to be heard

96.  Despite the 1^st Applicant sending the 1^st Applicant’s Response to the Convocation by email about 2 hours before the SC Meeting, there is no dispute that that document was only considered after the Decisions were made. In other words, the Applicants did not have the opportunity to address the adverse materials relied upon by the SC in reaching the Decisions to disqualify them.

97.  That, Mr Tam submitted, tainted the Decisions with procedural impropriety. He said that fairness requires that the adverse materials relied upon by the decision maker be disclosed to the person whose interests are adversely affected, so that the person could have the chance to make meaningful and focused representations: see Asia Television Ltd v Communications Authority (No 2) [2013] 3 HKLRD 618 at §53 and §61.

98.  Mr Tam also relied on the Lau Siu Lai case and Chow Ting v Teng Yu Yan Anne (Returning Officer) [2019] 3 HKLRD 459, in which the courts held that the returning officer’s failure to give a candidate a reasonable opportunity to respond to the adverse materials which were relied upon to invalidate the nomination would constitute a material irregularity. Both decisions were rendered in the Legislative Council election context, but as I and above indicated at the hearing, I think those cases are miles away from the present context – concerning the election to membership of the SC of the Convocation of CUHK. But Mr Tam’s position is that the Applicants were still entitled to a fair process in the SC Election context, and that includes a right to be informed of the media reports relied upon by the SC and an opportunity to address those reports.

99.  Mr Chan did not directly address whether the Applicants should have had disclosed to them the adverse materials against them, or the right to be given a reasonable opportunity to make representations. I think central to Mr Chan’s submissions is that the overall process was, in any event, fair.

100.  Mr Chan submitted that fairness is a wide and fluid concept. What fairness demands necessarily depends on the character of the decision-making body, the nature of the decision, and the statutory or other framework it operates: see Marcelo De Vera Centeno v Director of Immigration (unreported, HCAL 50/2012, 9 May 2012) at §15. More importantly, he said, fairness does not immutably require a person who may be adversely affected by a decision to be given an opportunity to make representations before a decision is taken with a view to procure a favourable result. In some circumstances, fairness may simply require that person be given the opportunity to do so after the decision is taken with a view to procure its modification, see R (Doody) v SSHD [1994] 1 AC 531, at 560 D-G. The extent of what fairness demands in terms of disclosure of adverse materials depends on all relevant factors, including the prima facie relevance and credibility of the materials and the Court would have to consider if the non-disclosure led to any actual risk of prejudice: see Asia Television at §54.

101.  In summary, Mr Chan submitted that the requirement of procedural fairness was satisfied because, as a matter of fact, the Applicants had made representations via the 1^st Applicant’s Response and the Discussion Forms both of which were considered by the SC very shortly after the Decisions were made, and that the non-disclosure of the accusations against them caused no prejudice because they knew about the case against them. Indeed, it seemed to be accepted that the SC was able to have changed its mind, after it considered the representations, had it thought it appropriate to do so.

102.  I think this perhaps gives rise to two sub-issues: (1) whether what the Applicants said in the 1^st Applicant’s Response and the 6 Discussion Forms could be taken as their representations in respect of the Decisions; and (2) whether fairness could be met by the SC’s having considered such “representations” not before but after the Decisions.

103.  Disclosure of adverse materials is usually the prerequisite to the right to make meaningful representation, because without knowing the accusation faced, it may not be possible to make meaningful and focused representation. The purpose of disclosure is to enable that person to controvert, correct or comment on such evidence and materials.

104.  The peculiar feature on the present facts is that despite the fact that the Applicants did not have disclosed to them the media reports relied upon by the SC or the reasons for disqualification until around September or early December 2023, they seemed actually to be well aware of the cause for concerns. In the case of the 1^st Applicant, this was reflected in the 1^st Applicant’s Response which he emailed the Convocation before the SC Meeting. Not only did he know that his criminal convictions were the cause for concerns, he was also able precisely to pinpoint Article 30(b) of the Constitution as the provision that might be relied upon by the SC. In other words, he knew that the accusation against his candidacy was that he was convicted of criminal offences which might be considered by the SC to be “of an immoral, scandalous or disgraceful nature”. To this end, there is a forceful argument that the non-disclosure did not cause him any real prejudice, because he was well aware of the case against him even without disclosure.

105.  Mr Tam said as now disclosed in the Convocation’s evidence, amongst the criminal convictions of the 1^st Applicant, the Convocation focused on the offence of assaulting a police officer/hitting a police officer with a metal pipe, which was of a violent nature. Mr Tam said had that been disclosed, the 1^st Applicant would be able to focus his attention to that particular conviction. Mr Chan emphasized that the SC relied on all convictions. The level of disclosure required to meet the standard of fairness is fact specific. In the present case, I do not think the non-disclosure of such detail had caused substantial prejudice to the 1^st Applicant.

106.  I accept that in the Form 86 (as confirmed on affidavit), the 1^st Applicant suggested that, had he been given an opportunity to make representation, he would have said that he was remorseful, that the chance of re-offending is low, that he would abide by the law and refrain from violence, and that he loves Hong Kong and has a passion in narrowing the parity between the rich and the poor. The 1^st Applicant disagreed that what he now said in the Form 86 are afterthought. He pointed to that similar matters had been raised in his mitigation letter dated 18 May 2021 (i.e. 20 months before the SC Election) submitted to the Magistrate. The 1^st Applicant did not mention such matters in the 1^st Applicant’s Response or other correspondence with the SC/Convocation around the time of the nomination or the SC Election.

107.  The Convocation argued that these matters were mere afterthought. But I do not think I need to determine that point. The real complaint was not that he might have been remorseful and so forth, so that the fact of the conviction should be given less weight; rather, the matter was whether the SC should exercise its power to invalidate his candidacy on the basis of his criminal conviction at all. This is precisely what the 1^st Applicant’s Response sent prior to the SC Meeting was obviously intended to address. His position in the 1^st Applicant’s Response was also consistent with the 6 Discussion Forms (in which he acted as seconder) – a categorical denial of the SC’s power to take into account his criminal convictions at all when considering his candidacy.

108.  For the 2^nd Applicant, if his case is viewed individually, it is not as clear what he might have said if he was invited to make representations. The evidence is less clear as to whether he knew the cause for concern was his publicly advocating secession of Hong Kong from China. But in the 6 Discussion Forms he submitted (and as was seconded by the 1^st Applicant), he referred to the Decisions and proposed to resolve that the SC’s powers under the Rule 13 of the Rules of Election does not extend to consider factors outside Rule 10 (in the 1^st Discussion Form) and to delete Article 30(d) of the Constitution which stipulates the vacation of office from committing conducts considered by the SC to be “of an immoral, scandalous or disgraceful nature” (in the 3^rd Discussion Form). Therefore, it appears that he did know that the accusation against him was that he had committed conduct of an immoral, scandalous or disgraceful nature. In short, as in the Form 86 regarding him, his stance was that the SC had no power to consider factors outside Rule 10 when it exercises its power under Rule 13.

109.  In the Form 86 (and confirmed on affidavit), the 2^nd Applicant said had he been given a chance to make representations, he would say that the secession speech was made in 2018, 3 years before the SC Election and prior to the enactment of the National Security Law. Since then, he had not advocated for secession at any material times of the nomination or the SC Election, including during or after the 2019 social unrest. He would also confirm that he would not advocate for secession at any time in the future. Mr Tam submitted that this could hardly be irrelevant matters for the SC’s Decisions. But, from the materials, it seems to me that the 2^nd Applicant knew the cause of concern was his conduct which might be considered to be immoral, scandalous or disgraceful, and it is only realistic to infer that he knew the concerning conduct at least included his prior advocacy of secession.

110.  As to delay to consideration of representations, Mr Tam did not dispute that in principle fairness could be met by making representations after the decision has already been made, with a view to procuring its modification.

111.  Mr Chan said there is nothing to prevent the SC from changing or modifying the Decisions after they had been made, and that seems to be accepted. Also, other than the 1^st Applicant’s Response and the Discussion Forms, Mr Chan also said the 2022 AGM could have provided a further opportunity for the Applicants to make representations, had they not brought the AGM to an earlier closure by their disorderly conduct. On the other hand, I am not sure that submission is fully supported by the evidence where Mr Yeung did not specify what exactly was the disorderly conduct which led to the closure of the AGM. What Mr Yeung said was “After the motion of non-confidence against me was passed, the Vice Chairman considered that it was no longer proper for the meeting to continue”. The Applicants said the Vice Chairman’s decision to close the 2022 AGM was motivated by the desire to prevent embarrassment.

112.  At the hearing, I indicated to Mr Chan that whilst the meeting minutes dated 13 February 2023 and the SC’s email dated 17 February 2023 said the SC would “make the relevant report” regarding the Decisions, that does not read like there would a question and answer session or something of the sort for the Applicants to have the opportunity to make representation. But Mr Chan pointed to Rule 16 of the Rules of Meeting, which provides that subject to rule 26(i), all members present shall have the right to speak, the Chairman may decide the order of speaking, invite observers to speak and set speaking time limits.  Therefore, Mr Chan’s point was not that there would be a specific session dedicated to the Applicants for the purpose of making representations on their eligibility, but that there was nothing to prevent them from making such representations in the 2022 AGM. That might be true. But since there was no session specifically dedicated to the Applicants’ making representations in the AGM, it could not be said that they would have such chance if the AGM was not brought to an early closure. In any event, there was insufficient evidence that the early closure was brought by their disorderly conduct.

113.  I think Mr Chan’s stronger point remains that the 1^st Applicant’s Response and the 6 Discussion Forms were considered by the SC shortly after the Decisions and that did not change the Decisions. Rule 13 of the Rules of Election only provides that should there be any dispute to the eligibility of any candidate, it shall be resolved by the Standing Committee in the absence of the candidate(s) in question. Rule 13 or other provisions do not provide for a more detailed set of procedures as to how the SC should resolve the dispute. The rules do not expressly provide that the candidate in question should be invited to make representation, let alone specify the means and time by which such representations could be made. Whilst the SC is not prohibited from overturning its own decision, common sense dictates representations made before a decision is made are often much more useful than representations made after the decision has already been made. But, considering the nature and function of the SC Election, the lack of procedural rules specifying how and when the candidates’ representations shall be taken into account, and the SC’s ability to overturn its own decisions, I think it is reasonably arguable that fairness may be satisfied by the SC’s considering the 1^st Applicant’s Response and the Discussion Forms shortly after the Decisions were made.

114.  Further, Mr Yeung’s affidavit evidence is that even if the Applicants had at the time referred the SC to what they said they would have said (as set out in the Form 86), none of the matters would have changed the outcome of the Decisions. On behalf of the SC, he confirmed that none of the matters could change the SC’s view that the Applicants’ conduct was scandalous and, in the case of the 2^nd Applicant, would put CUHK and the Convocation in a position of risk if he were allowed to run. Mr Chan submitted that the Court may refuse to grant relief even if the decision-maker has acted in breach of the principle of procedural fairness if the Court is satisfied that the Applicant has not suffered real prejudice and the substantive outcome will inevitably be the same: see Leung Fuk Wah Oil v Commissioner of Police [2002] 3 HKLRD 653 at §§40, 75-76.

115.  Mr Tam rightly reminded that the Court should be very cautious in accepting an argument that it is not necessary to give an opportunity to be heard because the same result would have been reached: see the Lau Siu Lai case at §§12-13. Indeed, I accept that circumstances in which someone who was denied the opportunity to present his case and yet held not to be unfair should be rare.

116.  But it seems to me that this is one of those rare cases. The specific concern about the 1^st Applicant arose out of his criminal convictions. In the case of the 2^nd Applicant, the concern arose out of his prior publicly advocating for secession. It seems to me – not least against the then prevailing political and social landscape – that no amount of supposed remorse or regret could have deflected the SC’s conclusion, which was and is based on the inherent nature and gravity of the conduct in question.

117.  Therefore, had I found Ground 1 to be made out, I would have refused to grant relief on the basis that it is inevitable that the Decisions would have been reached even absent the public law error.

118.  Before leaving this Ground, I note the Applicants said their constitutional rights to participate in public affairs under BL26 and BOR21 were engaged. However, they did not raise any constitutional challenge as a separate ground of challenge. Since the Applicants are not mounting a constitutional challenge, I see no profit in delving further into this.

119.  In summary, whilst I accept that Ground 1 was properly reasonably arguable as would justify the grant of leave, it would and does fail on substantive review.

I.  Merit of Ground 2 – Lack of Reasons

120.  It cannot be disputed that the reasons for the SC’s Decisions were only made known to the Applicants at the earliest by the LL Letter in September 2023, or later in Mr Yeung’s affidavit evidence in early December 2023.

121.  Mr Tam said the Court has twice expressed that the time may have come for Courts in Hong Kong to recognize that there is general duty to give reasons, unless there is proper justification for not doing so: see The Trustees of the Church of England in the Diocese of Victoria, Hong Kong [2020] HKCFI 501 at §§77-78 and Chow Oi Tong Amy [2020] HKCFI 1163 at §25-26. But as it now stands, the legal position remains that there is no general duty for administrative bodies to give reasons for the decisions they made. There was no dispute between the parties on this score.

122.  Mr Tam submitted that even if there is no general common law duty to give reasons, such a duty shall arise when the decision appears aberrant. A decision will have the appearance of being aberrant if it is markedly out of line with the decision which the decision-maker regularly makes on the topic. Relevant factors include the rarity of occurrence in the past an application was refused: see Pearl Securities v Stock Exchange of Hong Kong Ltd [1999] 2 HKLRD 243, at 260I, 261A-D. Mr Tam said it was rare for the Convocation to invalidate a candidate’s eligibility and this, in combination with the fact that they had complied with the requirement under Rule 10 of the Rules of Election, made the Decisions aberrant.

123.  Mr Chan said that the SC was under no duty to give reasons in the present case and, in any event, the lack of reasons had caused the Applicants no prejudice. Mr Chan did not dispute that a duty to give reason arises under the common law if the decision appears to be aberrant. But he said the Decisions were not aberrant so as to call for the giving of reasons. In gist, he said:

(1)  The Decisions were readily explicable. Given the Applicants’ criminal convictions or past conduct, it is easy to see why the SC would be concerned about their fitness to take part in the SC Election.

(2)  The reasons for the Decisions were expected. This is reflected in that the 1^st Applicant had already known or suspected that he would be disqualified for his criminal convictions and sought to address that in the 1^st Applicant’s Response. Similarly, the Applicants sought an amendment of Article 30 of the Constitution, showing that they knew or believed that Article 30 would be relied upon.

(3)  The mere fact that it is rare for the SC to reject a candidate’s eligibility does not make the Decisions inherently aberrant, not least because it is likewise rare for the SC candidates to be known advocates for secession or convicted of violent crimes.

124.  I agree, though I can see some force in the argument on both sides. Whilst it is undisputed between parties that the SC has the power to decide against a candidate’s eligibility even if all the Rule 10 requirements are satisfied, it would be generally expected that such a candidate would be approved as eligible unless there are good reasons not to do so. In such a case, it might be thought that those good reasons should be provided. Although Mr Chan must be right to say that rarity does not necessarily make a decision inherently aberrant, rarity is a factor.

125.  But I accept Mr Yeung’s evidence that it was his intention to explain and appraise the Applicants of the reasons for the Decisions in the 2022 AGM, but he had no chance to do so because the AGM was brought to an early close. Mr Yeung’s evidence is consistent with the minutes of the SC meeting dated 13 February 2023 and the SC’s email to the Applicants dated 17 February 2023, where the SC said they would “make the relevant reports” in respect of the Decisions.

126.  Mr Chan also submitted that the SC did eventually provide reasons to the Applicants by the LL Letter (which was received by the Applicants in September 2023) and by Mr Yeung’s affirmation dated 3 December 2023. Mr Chan submitted that the eventual giving of reasons negates all the prejudice alleged by the Applicants, and the Court ought to refuse to quash the Decisions. The key case relied upon by Mr Chan is Albert Leung v The Bar Council [2016] 5 HKLRD 542 at §§68-73. There, the Court of Appeal held that original reasons given to the Applicant were inadequate but that the more elaborated reasons given by the Bar Council in the course of proceedings were adequate, and endorsed the lower court’s decision not to quash the decision on that basis. The Court of Appeal agreed with the Bar Council that the Applicant was not prejudiced by the belatedly given reasons because the Applicant failed to show he could have done anything to improve his position.

127.  Mr Tam said that the Albert Leung case could be distinguished because, unlikely the Applicant there, the Applicants here did suffer prejudice from the lack of reasons. But it is undisputed that by the time the Form 86 was filed on 2 November 2023, the Applicants already had sight of the LL Letter and there was also no application to amend the Form 86 after they had received Mr Yeung’s affirmation.

128.  I would accept that Ground 2 taken alone reaches the reasonable arguability threshold for the grant of leave, but it would and does fail at the substantive stage.

129.  For the sake of completeness, in the skeleton submissions, the Applicants argued that the Court should be slow to accept the reasons put forward in the LL Letter and Mr Yeung’s affirmation because they are ex post facto reasoning. However, I agree with Mr Chan that that is not applicable when there is no statutory duty to give reasons and no original reasons were in fact given (which was the situation in the present case). Here, it would be strange if later reasons could not be adduced, see R (Leung) v Imperial College of Science, Technology and Medicine [2002] EWHC 1358 (Admin) §30; R (Peries) v Secretary of State for the Home Department [1998] COD 150. Further, as already mentioned above, the Applicants did not put forward what they considered to be the “original reasons” if they said what Mr Yeung said in his affirmation is not. Further, there is no reason to doubt what was put forward in the LL Letter and Mr Yeung’s affirmation were the true reasons for the Decisions.

J.  Result

130.  For the above reasons, I decline to extend time within which the Applicants could bring this application for leave to apply for judicial review. I also consider that, irrespective of which side of the line of amenability the case falls on, the challenge is also both academic and futile.

131.  In any event, even though the Grounds 1 and 2 on their own would be of sufficient merit to warrant the grant of leave to apply for judicial review, they would and do fail on substantive review. Ground 3 adds nothing to them.

132.  Therefore, the application is dismissed.

133.  I also see no reason at present why costs should not follow the event, and I order the Convocation’s costs to be paid by the Applicants, to be taxed if not agreed with certificate for two Counsel. The Applicants’ own costs should be taxed in accordance with the legal aid regulations. However, I first make that order on a nisi basis, to become absolute after 13 days if there is no variation application. Any variation application made will be dealt with on paper.