YU HUNG HSUA JULIE v. THE CHINESE UNIVERSITY OF HONG KONG

CACV 270/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2015

(ON APPEAL FROM HCAL NO 47 OF 2015)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1. The Applicant was an Associate Professor of the Chinese University of Hong Kong Business School and was the course instructor of Marketing Management. On 30 November 2015, after hearing counsel for the Applicant and counsel for the Putative Respondent, Chung J [“the Judge”] refused to grant leave to the Applicant to apply for judicial review in respect of the following decisions:

(a) the decision of the examination panel of the Graduate Division of the Chinese University [“the Initial Decision”], which was communicated to the applicant on 16 December 2014;

(b) the decision of the examination panel [“the Review Decision”], which was communicated to the applicant on 13 January 2015;

(c) the decision dated 14 January 2015 of the Dean of the Chinese University Business School; and

(d) the decision dated 2 February 2015 of the Vice-Chancellor of the Chinese University.

2. The relief sought in the Form 86 placed before the Judge were as follows:

(a) Certiorari to quash these decisions;

(b) declaration that the decisions of the examination panel are null and void and of no legal effect;

(c) Mandamus to oblige the examination panel to reconsider the students’ appeal which led to these decisions; and

(d) Mandamus to oblige the Dean and/or the VC to intervene.

3. The appeals by the students were brought in respect of their grading in the academic year of 2013-2014.  Based on the grades which the Applicant originally gave them, they would not satisfy the minimum requirements of the MBA programme.  As a result of the appeals, the examination panel (made up of the Associate Dean (Graduate Studies), Head of Graduate Division of Business Administration and Director of the MBA Programmes) re-graded them and they met the academic requirements of the programme.  MBA degrees were conferred upon them in 2015, graduation ceremony was held on 19 November 2015.

4. The Applicant herself retired from her position as an Associate Professor on 31 July 2015.  By now, she has no teaching appointment with the University.

5. One of the main issues before Chung J was whether the students would be affected by the application for judicial review.  Counsel for the Applicant submitted that the students would not be affected as she did not ask for an order revoking their degrees.  The Judge did not accept this argument.  In view of the seeking of the declaration that the decision of the examination panel to re-grade was null and void and the mandamus to reconsider the students’ appeal, the Judge was plainly correct. 

6. The Judge held that because of the conferment of degrees on the students and the rejection of the Applicant’s various suggested options to deal with the students as impractical, the whole matter has become academic and it was simply too late to turn the clock back.  Further, the Judge also found there was delay on the Applicant’s part in proceeding with the application for leave.  The Judge therefore exercised his discretion by refusing to grant leave.

7. The Applicant appealed against the decision of the Judge.  In order to overcome the difficulty arising from the obvious impossibility of reversing the conferment of degrees, Ms Eu SC (who only represented the Applicant in this appeal but not below) applied to amend the Form 86.  In the proposed amendments, the Applicant abandoned the relief originally sought by her and confined herself to the following relief:

(a) A declaration that the Initial Decision, the Review Decision, the decision dated 14 January 2015 by the Dean of the University’s Business School and the decision dated 2 February 2015 by the Vice Chancellor of the University infringed the Applicant’s academic judgment and/or were in breach of paragraph 12.2 of the Code of Practice of the University;

(b) Further or alternatively, a declaration that the Decisions infringed the Applicant’s academic judgment and/or were in breach of paragraph 6.3 of the Code of Practice of the University;

(c) Further or alternatively, a declaration that the University is and was under a duty to respect the academic judgment of its academic staff such as the Applicant and should promptly consult him/her before changing the grades of the students of the academic staff. 

8. We must first deal with this application for leave to amend the Form 86 because as submitted by Mr Chan SC unless we grant leave to amend the Applicant cannot rely on the amended Form 86, see Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKLRD 668.

9. Though this Court can consider amendments of the Form 86 in an appeal against the refusal of leave, we have to be satisfied that it is fair to do so, taking account of the role of the court in an application for judicial review, see Chee Fei Ming v Director of Food and Environmental Hygiene (No 2) [2016] 3 HKLRD 412 at [21], [22] and [26].  It is a matter of discretion and such discretion must be exercised with reference to the relevant circumstances of the case. As it had been said in the course of the appeal, the crucial question is whether the court should allow the amendments so that it could entertain the application for judicial review given that the decisions in question had been overtaken by irreversible intervening events (the conferment of degrees and the retirement of the Applicant). 

10. Ms Eu submitted that we should do so as the issues raised in the judicial review involved questions of general public importance and the determination of such issues by the court can provide guidance for future cases.  She cited the approach of Ma CJHC (as the Chief Justice then was) in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at [20]. 

11. In our judgment, the following are highly relevant considerations in the present context in assessing whether leave to amend should be granted:

(a) The substantial lapse of time between the decisions which the Applicant wishes to challenge and the application for leave to amend.  During the intervening period, the decisions had been overtaken by the conferment of degrees on the students and the retirement of the Applicant.

(b) The failure of the Applicant to use the grievance procedure of the University to address what is essentially a difference in opinion between her and the examination panel as to the fairness of the grading procedure.  That procedure, which was eminently suitable for resolving the real substantive dispute in this case (including whether there was any breach of the Code of Practice of the University and if there were, what would be the most appropriate remedy), was available until she retired from her teaching appointment in the University.

(c) The lack of merit of the Applicant’s case on infringement of her academic judgment on the facts of the present case.

12. Ms Eu submitted that the issues in the Applicant’s application for judicial review involve the question of academic freedom guaranteed under Article 137 of the Basic Law.  Counsel said the academic judgment of the Applicant was infringed by the University and there is a general public interest to have the issues determined notwithstanding the graduation of the students and the retirement of the Applicant.

13. With respect, we do not agree that Article 137 of the Basic Law is engaged.  That article protects the autonomy and academic freedom of educational institutions.  In particular, it provides that such institutions may continue to recruit staff and use teaching materials from outside Hong Kong.  Thus, the autonomy of the University and the collective academic freedom of the institution are the primary subject matters of protection. 

14. Ms Eu relied on the dicta of Hartmann JA in Secretary for Justice v Commission of Inquiry re Hong Kong Institute of Education [2009] 4 HKLRD 11 at [56] where His Lordship suggested that the academic freedom vested in the educational institution must extend to the faculty of academics.  But that was said in the context of the freedom of such academics to pursue the search for knowledge without fear of external sanction.  The earlier paragraphs at [50] to [52] in that judgment recognised that the freedom in question under Article 137 is the institutional freedom of the university. 

15. The other case cited by Ms Eu, The Catholic Diocese of Hong Kong v Secretary for Justice CACV 18 of 2007, 3 Feb 2010,[97] to [101] did not take the matter further. 

16. In our judgment, there cannot be any suggestion that there was any external interference with the institutional freedom of the University in deciding how its students are to be assessed.  What is in issue is the dispute between the Applicant and the examination panel as to whether the latter acted within the proper scope of intervention provided by the Code of Practice of the University.  We do not see how Article 137 is engaged in such circumstances.

17. The present dispute is about the procedural fairness in the assessment of the students, as emphasized by the examination panel in its Initial Decision.  It fully appreciated the need to respect the teacher’s academic judgment and it did not challenge or review the Applicant’s decision to base course assessment on oral participation, assign negative participation scores, or to assess participation based on both quantity and quality.  It identified the issues addressed by it as follows:

“ whether students had been adequately informed about these grading policies, and whether these policies were adhered to and properly administered.”

18. The Applicant obviously disagreed with the examination panel’s assessment on those issues.  However, even assuming she had good reasons for her disagreement, we do not regard such difference in opinion as providing a valid basis for suggesting that her academic judgment had been unduly interfered with.  Based on what were before us, the examination panel was genuinely performing its task in handling a grade appeal in accordance with the Code of Practice and in so doing it was mindful of the academic judgment of the Applicant.  The fact that in the performance of that task the Panel might have to come to a certain decision which superseded the grades awarded by the Applicant is inherent in the system for grade appeals.  The Panel could have made procedural or substantive errors in the process.  This is a risk built into the system of assessment of students set up by the University when such system provides a mechanism for grade appeals.  It is within the institutional academic autonomy and freedom of the University in setting up such a system, see Secretary for Justice v Commission of Inquiry re Hong Kong Institute of Education [2009] 4 HKLRD 11 at [55].  The stark reality is that under such a system, the assessment of the Applicant might be reviewed by an examination panel and provided the Panel performed its task in good faith it cannot be said that there was undue interference with academic judgment. 

19. Hence, we do not agree that this is a case about interference of academic judgment of the Applicant.  In this connection, we do not think there is any mileage to be gained by the Applicant in referring to the email of 2 February 2015 from the Registrar when the Initial Decision had clearly set out the understanding of the examination panel as to the scope within which it considered the grade appeals.  There is no evidence which suggested that the Panel did not act with paragraph 6.4 of the Code of Practice in mind.

20. Whilst there may be traditional judicial review grounds based on the peculiar facts of the present case for challenging the decisions of the Panel, they do not come anywhere near to give rise to a matter of general public importance warranting the court to grant leave notwithstanding the underlying decisions were overtaken by subsequent events.  As accepted by Ms Eu, the Applicant did not challenge the system which was in place, the real challenge was to how this particular Panel had applied the system of the University in this instance. There is no evidence that other panels operating under the same or similar systems made, or were otherwise prone to make, similar mistakes (if the decisions of this Panel were imbued with mistakes in terms of traditional judicial review grounds).  The present case is different from the situation in Chit Fai Motors Co Ltd v Commissioner for Transport, supra.

21. Part of the Applicant’s complaint is directed towards the moderation exercise.  But the exercise only came into the picture after the Panel had reached the conclusion that the original assessment was tainted with unfairness towards the students concerned.  With such conclusion, the Panel had to consider how the situation had to be remedied.  The Code of Practice does not prescribe that the Panel must remit the matter back to the original assessor for moderation.  If the Panel saw fit to exercise its own judgment (whether it is characterized as an academic judgment or otherwise) on how the situation should be remedied, it was a matter for the Panel.  The Court could not and should not interfere or micro-manage these sorts of decisions in the name of protection of the academic judgment of the Applicant. 

22. Notwithstanding Ms Eu’s submission to the contrary, we agree with Mr Chan that the dispute on the handling of grade appeals in future is eminently suitable for resolution by the University’s grievance procedures.  The email of 20 October 2014 from the former Dean and the email of 19 December 2014 from the Secretary of the Faculty showed that the University was willing to hear from the Applicant how the handling of grade appeals could be improved in the future.  To that end, a meeting with the Vice-Chancellor had been arranged.  It is unfortunate that the Applicant sent a copy of her draft Form 86 to the University and intimated that she would bring along her solicitor to the meeting.  Understandably, such moves led to the cancellation of the meeting.  In our judgment, if the real concern of the Applicant was to address how the handling of grade appeals could be improved, we do not see any basis to suggest that the same could not be canvassed by formal or informal grievance procedures. 

23. For these reasons, we refused to grant leave to the Applicant to amend the Form 86 and we dismissed the appeal with costs (with certificate for 2 counsel) accordingly.