NG YUK KEE BRIAN v. THE UNIVERSITY OF HONG KONG

HCMP 465/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 465 OF 2015

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JUDGMENT

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1.  The conclusion I have reached, having heard the submissions of leading counsel for each of the parties, is that the plaintiff has been premature in the approach he has made to the court by way of an Originating Summons. I explain why below.

Background

2.  The plaintiff in this case, Mr Brian Ng Yuk Kee (“the Student”) is a very determined dentistry student at Hong Kong University.  Due to a pre‑existing medical condition, and, it appears, a considerable number of operations and other medical procedures in consequence of that condition, his studies at the University have been severely hampered, and he has found it necessary to repeat some years of the curriculum.  His course of study involves, among other criteria, practical assessments of certain clinical skills, and one of these has proved particularly challenging for the Student.  He has attempted the assessment, known as Key Skill 2.1, on a number of occasions, so far without success.

3.  Key Skill 2.1 is ordinarily taken by dentistry students in their 2^nd year of study (BDS II), and the Student also first attempted that assessment at that stage of his studies.  He was unsuccessful with Key Skill 2.1 in that year, but was allowed to proceed to year 3 during the course of which he made further attempts at the assessment.  As matters transpired he found it necessary to repeat year 3, but had completed the relevant academic requirements of that year (leaving aside Key Skill 2.1) by the end of the 2013/2014 academic year.

4.  The Student’s medical difficulties have not only caused, indirectly, the Student to require considerably more attempts at this assessment than would ordinarily be required, but also the defendant (“the University”) has permitted considerably more attempts at this assessment than might be considered usual.

5.  On 16 July 2014 the Student was notified by letter that, in light of his continuing inability to perform satisfactorily in Key Skill 2.1 that he would be allowed to advance to year 4 of the course (BDS IV) but subject to his achieving a successful assessment in Key Skill 2.1.  There is an issue between the parties as to the true meaning of this letter, the University contending that this made the Student’s promotion to BDS IV conditional on success in the Key Skill assessment.  There is also an issue between the parties as to what approach should properly be taken by the University in considering success or failure in the relevant Key Skill assessment.  In his earlier years of study the Student was assessed, it appears, on a formative basis, but more recently the assessments have been summative.  The assessment approach and the implications will be expanded on below.

6.  In any event a further Key Skill 2.1 assessment was arranged for 25 July 2014.  This was the Student’s 6^th attempt, but unfortunately the result was still unsatisfactory as far as the University was concerned.

Key Skill 2.1

7.  Key Skill 2.1 is an assessment of diagnostic skills of the dental students.  As referred to above, the parties are not agreed as to the correct approach to this assessment.  Specifically they are at odds as to whether the test is formative or summative in nature.  The Student contends that the assessment was to be “formative” (described on the University’s Assessment Resources Centre website as an assessment that guides students’ approaches to study; provides feedback on their progress; and providing an opportunity to demonstrate whether or not they have achieved the Intended Learning Outcomes).  The University contends, and has proceeded on the basis, that the assessment is now “summative”, resulting in a pass or fail assessment (ie provides evidence as to the level the student has achieved against the Intended Learning Outcomes in order to proceed to the next level of study).

8.  The consequence of failing a summative assessment is of course the need to re‑take the assessment.  However, by virtue of the Key Skills Manual students may “carry forward” a key skill assessment to the following year, but no further.  The University has therefore proceeded on the basis that the Student has not (and cannot) complete BDS III until he has satisfactorily accomplished the carried forward Key Skill 2.1.

9.  The summative approach to key skills assessments was, according to the affirmation of Dr Gary Cheung Shun Pan, only introduced with the introduction of “Guidelines on Management of Key Skills Assessment for the 5 year BDS Curriculum” in 2013.

10.  Mr Cooney SC, on behalf of the Student, submits that these Guidelines do not apply to the Student because, in terms, they were said to apply to the “2010, 2011 and 2012 cohorts”.  The Student was admitted in 2008 and therefore the Guidelines are not applicable to him.

11.  Mr Smith SC, for the University, contends, to the contrary, that the Guidelines do apply to the Student because he has, through retaking various years of the course, now become part of the cohorts to whom the Guidelines apply.

12.  As it happens it is not necessary for me to come to a conclusion on this.  However, it seems to me that the Guidelines were designed not to vary the assessment approach for existing students, allowing them to complete on the basis on which they were assessed before the Guidelines.

Further Attempts at Key Skill 2.1

13.  A meeting was convened on 15 August 2014 at which the Student’s situation was discussed.  It is not clear who called for this meeting but it was solely for the purpose of discussing the Student’s problems with Key Skill 2.1.  The meeting itself reached no conclusion, at least as far as the Student’s academic future was concerned, but the Student was informed that a decision would be taken by the Board of Examiners. That Board met on 8 September 2014 and resolved as follows:

(i)   that subject to Mr Ng’s satisfactory completion of the prescribed remedial work, he be granted the final attempt of Key Skill 2.1 before end of Module Two, 2014/2015; and

(ii)   that he be allowed to proceed to the fourth year of the BDS curriculum in 2014/2015 on condition that he had passed the assessment of Key Skill 2.1 in the special and final attempt.

14.  The Student was again given the assessment (his 7^th attempt overall) on 15 December 2014.  He was assessed (on a summative basis) and, unfortunately was again unsuccessful. At this point the University again considered the Student’s position.  Specifically, the Board of Examiners resolved with effect from 29 December 2014 that the Student should not be allowed to sit for the BDS IV assessments which were due to take place in January 2015.  The rationale was that his promotion to BDS IV had been conditional on success at Key Skill 2.1 and he had been unsuccessful.  His promotion to BDS IV therefore, for want of a better expression, lapsed.

15.  The Student was notified by letter dated 29 December 2014 that he would not be permitted to sit for the January BDS IV assessments.  To make matters worse as far as the Student was concerned, on 8 January 2015 he was “advised” that he should not continue to attend BDS IV classes pending a decision as to his future being taken by the Board of Examiners.

16.  The Board of Examiners met on 20 January 2015.  They considered that there were two options available. The first was to allow the Student yet another attempt at Key Skill 2.1. The understanding of the Board of Examiners was that this would require a waiver of Guidelines; since, to their understanding, the Guidelines required a summative assessment of this Key Skill; with no more than three attempts being allowed.  The Student contends that, in approaching the matter in this way the Board of Examiners were purporting to apply the “wrong” Guidelines because the Guidelines which they applied came into effect only after the Student was admitted to the University.  The 2^nd option available was to discontinue the Student from his studies in dentistry.

17.  The Board of Examiners resolved that the 2^nd option should be taken, but the procedure was for this initial decision to then be considered by the Faculty Review Committee.  That committee met on the 26 January 2015 and resolved to recommend that a waiver of the requirements of the Guidelines should be granted so as to allow the Student a 5^th (summative) attempt at Key Skill 2.1.  Perhaps recognising (as the student himself did) that the Student required as much clinical experience as possible to provide him with the best opportunity to succeed in this assessment, this was (and is) scheduled to take place on 23 June 2015.

18.  The Student was notified of this by letter on 10 February 2015 in terms which stated that this would be the final attempt allowed to him.

19.  As summarised by counsel for the University, in a submission which I accept to be correct, the current status of the Student is that he is neither suspended nor discontinued.  He remains a student at the University having completed BDS III (subject to the position in regard to Key Skill 2.1) but has not yet been promoted to BDS IV.

These proceedings

20.  Following his notification via the letter of 8 January 2015 that he should not continue to attend BDS IV classes, the Student wrote the first of a series of what were referred to during the hearing in shorthand form as “grievance letters”.  These were said to be an invocation of the grievance procedure (“Procedures for the Resolution of the Grievances of Students” referred to here as “the Grievance Procedure”) by which a procedure is set out for students who are dissatisfied with decisions taken and which have adversely affected them. 

21.  For present purposes I record that there was disagreement between the parties as to whether any of the relevant letters were attempts to invoke the procedure.  The first letter is illustrative of the debate.  The Grievance Procedure specifies that, in the first instance, any issue is to be raised with the Head of the teaching department or the Dean of the relevant Faculty.  The letter sent by the Student on 12 January 2015 was indeed addressed to the Dean, and certainly raised the issue of the Student’s status within the student body.  It also eloquently set out the Student’s perceived difficulties and his requests for additional assistance from the faculty to enable him to pass the relevant Key Skill.  The Student stated that he would “value the opportunity to sit the fourth year Objective Structured Clinical Assessment exam, resit the second year Oral Diagnostics and Treatment Planning key skill, and to continue attending my classes”.

22.  This is politely phrased, but clearly asks for a change to be made to the decisions which had been communicated to the Student at that time.  Assuming that the letter did indeed start the Grievance Procedure the subsequent steps would be firstly for the complaint or matter to be investigated by the Dean of Faculty, with a view to resolving the matter fairly and informally in a manner acceptable to all parties.  If the complaint cannot be resolved in that way, then either the Dean of the Faculty or the student may refer the matter to the Vice Chancellor in writing.  The Vice Chancellor is then to investigate and may refer the complaint to a grievances panel which shall, in turn, set up a Committee of Enquiry.

23.  The Student complains before the court that there was no response to the letter (or indeed the subsequent letters) from the Faculty and this appears to be correct.  However it is not, in my view, particularly surprising given that the matter was under review by the Board of Examiners, as the Student well knew, at that time.

24.  The Student was notified of the decision reached by the Board of Faculty on 10 February 2015, and was informed, as it was phrased, that he had been granted a waiver to allow him to take the “5^th and final” attempt at the Key Skill 2.1 assessment in June 2015.  The Student responded with a letter on 16 February 2015 addressed to the Dean which, again, the Student classifies as an invocation of the Grievance Procedure and the University classifies as a request for further assistance and support.  In any event this letter was sent only a day or so in advance of the University holidays spanning Chinese New Year, which commenced on the 18 February and concluded on the 25 February 2015.  Perhaps unsurprisingly in those circumstances there was no substantive response to the letter over the holiday period.  A further letter was sent by solicitors acting on behalf of the Student on 25 February, immediately following the University break for Chinese New Year, this requesting a reply within the same day, and warning of legal proceedings being commenced in default of a reply.

25.  The only response which was sent was a holding reply.  On 27 February 2015 the Student went to court and obtained, ex parte, an injunction.  An Originating Summons was issued also on 27 February.  The parties came before the court on the return date for the injunction order (which was 6 March 2015) on which date the ex parte injunction order was discharged and replaced with an undertaking in like terms given by the University.

The Grievance Procedure

26.  The Grievance Procedure is not prescriptive as to the way in which a grievance is to be raised save and except that it must be done in writing.  Thus, the fact that the Student’s letters do not explicitly refer to that procedure, and contain requests for assistance, does not mean that the procedure was not being invoked.  However, where there is no explicit reference to the grievance procedure, then the proper understanding of the letter I think has to be found by considering not only the letter itself but the surrounding circumstances. 

27.  On balance, in the context of the Student having been informed that he could not take further assessments or attend BDS IV classes, it seems to me that this letter should have been understood to be a request under the Grievance Procedure. 

Missing steps

28.  As can be seen from the above however, the grievance procedure provided for by the University involves more than the single step of raising a concern to the Dean of Faculty.  If this step in itself does not result in a satisfactory conclusion then the matter is to be taken up with the Vice Chancellor.  There is no dispute between the parties that this step has not been taken.

29.  There are, I believe, three relevant points to be made in that regard.  The first, as is pointed out on behalf of the University, is that the “domestic remedies” have not been exhausted.  The University refers me to the decision of Underhill J in Moroney v Anglo European College of Chiropractic [2009] ELR 111, a case with not dissimilar facts in which a student challenged a decision by his college requiring him to withdraw on the basis of poor academic performance.  This was contended to be a breach of his contract with the college.  In the course of considering the nature of the claim which was made Underhill J observed (at paragraph 20) that:

“Other things being equal I would be inclined to regard it as an abuse of process for a student to bring proceedings in the courts unless and until he had exhausted that domestic remedy.”

30.  In my respectful opinion, and notwithstanding the opening few words of that sentence, the proposition is too broad.  There are circumstances, it seems to me, in which recourse to the courts in advance of an exhaustion of the “domestic remedies” might be appropriate.  Urgency could perhaps be an example.

31.  It was common ground between the parties that the legal relationship between the Student and the University was contractual, and that, as part of that contractual relationship, each had agreed to follow certain rules and procedures, and may be considered to be in breach if they do not conform to those procedures.  Indeed the alleged failure to follow procedure was a ground on which damages was sought in Moroney.  Damages are not in issue here, but the courts will carefully scrutinise the appropriateness and necessity for any application for discretionary relief brought, prima facie, in contravention of an agreed contractual procedure.

32.  Therefore, while I do not think it can be said that a court should never intervene until the contractually agreed processes have been completed, the court will ordinarily wish to hold the parties to their contractual agreement unless the circumstances dictate some other course.

33.  Not the least reason for this, and thirdly, is that following the specified procedures will cause a student complaint to be considered by University staff  who, by virtue of their experience and background, are particularly well placed to consider the complaint in the context of the academic functioning of the University. 

The discretionary remedy sought

34.  By the Originating Summons the Student seeks two declarations and two injunctions.  It is common ground of course that the grant of such relief is a matter of discretion.  The declarations sought are as to the ‘suspension’ of the Student from his enrolment in year 4 (BDS IV) and as to his exclusion from classes. 

35.  Injunction orders are sought firstly restraining the University from excluding the Student from classes except where he has been lawfully suspended or had his studies discontinued, and secondly requiring the University to take steps to “accord the plaintiff full academic and student status”.

Should the discretion be exercised in favour of the Student?

36.  As may be apparent from the paragraphs above I have come to the conclusion that the court should not intervene in this matter at this stage in respect of any of the relief as requested in the Originating Summons.  Firstly, factually, it does not appear on the material before me that the Student has in fact been “suspended” although the practical effect of his being considered as being somewhere between BDS III and BDS IV is perhaps indistinguishable as far as his studies in general are concerned.  He remains eligible to attempt Key Skill 2.1 again however and, in that sense, his studies continue.

37.  In any event, by virtue of the undertaking given by the University following the granting of the ex parte injunction the Student has not, I understand, been excluded from classes since 27 February 2015.

38.  Secondly, the parties have not completed the process under the Grievance Procedure.  Both Student and University are entitled to the chosen procedure, and the court should intervene to pre‑empt a decision under that procedure only if the circumstances clearly require such intervention.  The key relevant circumstance which is urged on me in the present case is that there was some urgency in the Student’s position at the time court proceedings were commenced.  At that stage he had pursued BDS IV studies through the first term of the 2014/2015 academic year, and was anxious to complete those studies.  I do not think it can be said that the court proceedings have been tardy, and it may be that following the Grievance Procedure would have been no quicker, but the fact remains that, as at the date of this judgement, the academic year is coming to an end.  Urgency is no longer a factor.

39.  Thirdly, while it seems to me that the University may have applied the ‘wrong’ approach to the Key Skill 2.1 assessments as far as the Student is concerned, I do not think the relevant faculty members have in any sense been unsympathetic in their handling of the Student’s situation.  The fact that serious efforts have been made to assist the Student would seem to me to be an additional factor militating against the court exercising its discretion to intervene. 

Conclusions

40.  In the circumstances the Student’s application in the Originating Summons is unsuccessful and is dismissed.

41.  Also before me is whatever remains of the Inter Partes Summons of 27 February 2015 to continue the ex parte injunction.

42.  The ex parte injunction was discharged by consent, with costs reserved, upon the undertaking given by the University, and it appears that all that remains is for the University’s obligation under the undertaking to be either renewed or released, and costs.

43.  In circumstances in which none of the declaratory or injunctive relief sought in the Originating Summons is to be granted, it appears inevitable that the University should be released from its undertaking.  Costs are addressed below.

Costs

44.  I indicated at the hearing that I would make costs orders on an ‘order nisi’ basis, which I now do.  The costs of both the inter partes summons of 27 February 2015 and of the Originating Summons also dated 27 March 2015 are to be to the defendant, to be taxed if not agreed.