LI FUNG KEI v. THE COUNCIL OF THE UNIVERSITY OF HONG KONG

HCAL 262/2015

[2018] HKCFI 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 262 OF 2015

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AND

HCAL 263/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 263 OF 2015

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_________________

(heard together)

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D E C I S I O N

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A. Introduction

1.  These are the applicants’ leave applications respectively under HCAL 262 and 263/2015 to apply for judicial review challenging the decision (“the Decision”) made by the Council of the University of Hong Kong (“the Council”) on 29 September 2015.  By way of the Decision, the Council decided not to appoint Professor Johannes Chan (“the Candidate”) for the post (“the Post”) as Pro‑Vice‑Chancellor in charge of Academic Staffing and Resources.  The Candidate was recommended by the Search Committee previously set up by the Council to look for and recommend candidates for the Post.

2.  The applicant under HCAL 262/2015, Mr Li, is an undergraduate student of the University of Hong Kong (“the HKU”).  The applicant under HCAL 263/2015, Mr Fung, is a student and was a member of the Council (as its undergraduate student representative) at the material time.  At the hearing, both Mr Li and Mr Fung were represented by Ms Gladys Li SC, leading Ms Linda Wong (for Mr Li) and leading Mr Jeffery Tam (for Mr Fung).

3.  Under HCAL 262/2015, Mr Li raises a single ground of judicial review in the Amended Form 86, which is that the Decision is unlawful as the Council failed to give any or adequate reasons for the Decision (“the Lack of Reasons Ground”).

4.  The proposed grounds raised in the intended judicial review by Mr Fung in HCAL 263/2015 under the Amended Form 86 are in gist that the Decision is unlawful as:

(1)   The Council failed to provide an opportunity for the Candidate to be heard when this was clearly required under the Council’s Tameside duty to make sufficient inquiry and as a matter of fairness (“the Procedural Impropriety Ground”).

(2)   The Council in making the Decision made material errors of fact, took into account irrelevant considerations and in any event gave manifestly excessive weight on certain considerations (“the Material Illegality Ground”).

(3)   The Council in making the Decision failed to consider all relevant considerations (“the Relevant Considerations Ground”).

5.  In the respective original Forms 86 filed on 29 December 2015:

(1)   Mr Li seeks the relief of an order to compel the Council to give reasons for the Decision and a declaration that the Decision is illegal.

(2)   Mr Fung seeks the relief of a declaration that the Decision is illegal and procedurally improper.

6.  As directed by the court, the Council filed an Initial Response on 29 March 2016 to oppose leave to be granted.  The principal initial grounds of opposition are that:

(1)   The Decision is not amenable to judicial review as it is in nature an employment decision made by the Council not in the exercise of a public law function.

(2)   The Decision is in any event academic and futile since no useful purpose can be served by giving the reliefs as the Post would still be kept vacant.  In any event, insofar as Mr Li’s intended judicial review is concerned, the membership of the Council has since changed substantially and in law the court cannot compel the presently differently constituted Council to give reasons for the Decision.

(3)   Mr Li has no sufficient locus to bring the intended judicial review.

(4)   The proposed grounds are in any event without merits and not reasonably arguable.

7.  By way of the Amended Forms 86 made on 28 November 2016 (about a week before the leave hearing):

(1)   The applicants proposed to make various amendments to the Form 86 to set out materials and propositions alleging effectively that the Decision relates to and concerns with institutional autonomy and academic freedom and autonomy protected under Article 137 (“BL137”) of the Basic Law (“the BL”).[1] The applicants further rely on BL34 and 136[2] to buttress the right under BL137.

(2)   The applicants also sought to amend the relief:

(a)   Mr Li now only seeks the relief of a declaration that “the Council failed to have regard to their duty to protect and maintain the institutional autonomy of and academic freedom of and within the University of Hong Kong and/or through the statement made by the Chairman in accounting the Decision the Council similarly failed in that the Decision was unreasoned and/or unsupported by adequate reasons”.

(b)   Mr Fung now seeks the relief of a declaration that “the Council failed to have regard to their duty to protect and maintain the institutional autonomy of and academic freedom of and within the University of Hong Kong and the Decision was procedurally improper and/or unlawful”.

B.   The brief facts

8.  The University of Hong Kong Ordinance (Cap 1053) (“the HKUO”) designates the Council as the supreme governing body of HKU. Members of the Council are required to keep all the discussions in the Council’s meetings and proceedings confidential.[3]

9.  Section 12(1) of the HKUO provides that the officers of the University shall include the Pro-Vice-Chancellors (“PVC”).

10.  By 2014, the Post (which was then named as Pro‑Vice‑Chancellor (Staffing)) had been left vacant for several years since the previous person occupying the Post left HKU.  In January 2014, the Council decided (accepting the recommendation of the Human Resources Committee of HKU) to re‑establish the Post.  In June 2014, the Council decided to change the name of the Post from Pro‑Vice‑Chancellor (Staffing) to the present Vice President & Pro‑Vice‑Chancellor (Academic Staffing and Resources).

11.  A Search Committee (headed by the President and the Vice‑Chancellor with other members appointed by the Council) was then formed to select candidates (with the assistance of a head hunting firm) to be recommended to the Council for the Post.

12.  According to the Post’s advertisement, the office‑holder would be responsible for developing the HKU’s policies and processes in academic resources allocation, inclusive of financial resources, and all facets of faculty recruitment, retention, and professional development.

13.  Sometime prior to 30 June 2015, the Search Committee indicated that it was ready to present its recommendation for the Post. Its recommendation was placed on the agenda of the Council meeting of 30 June 2015.  However, the Council resolved and voted to defer its discussion.

14.  Eventually on 29 September 2015, the Council met again and discussed the recommendation.  Members of the Council took turns to express their views about whether they would support the recommendation. The Council finally voted and made the Decision not to accept the recommendation.

15.  After the meeting, the then Chairman of the Council, Dr C H Leong stated to the public that “the Council has rationally debated the recommendation of the Search Committee, and our discussion today is based on the long‑term and the best interest for the university, that we did not accept the recommendation”.

16.  In this respect, it must be noted that G Lam J in The University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd (No 2) [2016] 4 HKLRD 113 has upheld the Council’s confidentiality requirement and continued an injunction prohibiting the publication of any “leaked” information and materials relating to some of the members’ discussions made at the Council’s meeting before making the Decision.

17.  It is also noted that between November 2014 and the Council’s meeting on 29 September 2015, there had been various newspapers articles published and statements issued by some teaching staff of the HKU concerning the selection of the candidate for the Post.  In gist:

(1)   Wen Wei Po reported that there were rumours that the Candidate had been selected by the Search Committee as the only recommended candidate for the Post.

(2)   Articles in Wen Wei Po and Tai Kung Po[4] had made various comments and criticisms as to the suitability of the Candidate for the Post, in particular in relation to allegations that the Candidate had supported the then occupy central movement.  It also commented that the Candidate had strong political views and questioned whether he was capable of fulfilling his duty as a PVC impartially.

(3)   At the same time, some newspapers and media such as Mingpao Daily, Apple Daily and RTHK started to publish articles[5] alleging suspected political interference of this appointment.

(4)   There were also articles published in Hong Kong Economic Journal and Mingpao Daily[6] and an interview report of an academic published in Apple Daily[7] whereby concerns about the issues of academic freedom and institutional autonomy of the HKU were raised.

(5)   On 30 July 2015, a Joint Statement was issued on behalf of ten Deans of Faculties of the HKU in which it was stated that “academic freedom and institutional autonomy, guaranteed by BL137, are the absolute bedrock of higher education in Hong Kong, as elsewhere.  We cannot emphasise more strongly the importance of adhering to those principles in all that the University does, particularly at the highest decision‑making level.”

(6)   On 30 July and 1 August 2015, Stand News and Apple Daily respectively reported the resignation of Council members because of the appointment issue.  Stand News also referred to Mingpao Daily’s report that some management personnel of the HKU worried that as revealed in the appointment issue, academic freedom within the HKU would be restrained and interfered with by the Council.

18.  On 29 December 2015, Mr Li and Mr Fung respectively applied for leave to judicially review the Decision.  As mentioned, the Council as putative respondent filed an Initial Response in March 2016 opposing leave.  On 23 May 2016, the court directed a hearing of the leave application, which was fixed to be heard on 6 December 2016 in consultation with counsel’s diary.

19.  On 31 May 2016, the Council resolved to appoint Professor Terry Au for the Post with effect from 1 June 2016 for a term of three years.  The recruitment exercise of the Post had therefore been completed.  The membership of the Council has also materially changed since the Decision.

20.  On 28 November 2016, the applicants proposed to respectively amend the Forms 86 by way of the Amended Forms 86 to the effect as summarized above.

C.   This leave application

21.  Mr Yu SC (together with Mr Abraham Chan) oppose the leave applications on a number of bases.  I will deal with them in turn.

22.  First, Mr Yu submits that leave should not be granted as the proposed judicial reviews have clearly become academic and would serve no useful practical purpose.

23.  It is trite that, save in exceptional circumstances, the court would not grant leave to apply for judicial review if the proposed judicial review deals with issues which are or have become academic and would serve no practical purposes.  This has been explained by Ma CJHC (as the learned Chief Justice then was) in Chit Fai Motors v Commissioner for Transport [2004] 1 HKC 465 at paragraph 20 as follows:

“20. Where it is contended, as the Commissioner has maintained in the present appeal, that the question before the court is academic or hypothetical, the following factors will feature in the court’s approach (there are by no means exhaustive since this question can arise in a number of different contexts):

(1) Where a question is purely hypothetical or academic in the sense that there are simply no events that have occurred that form the basis for the question to be answered, a court will not entertain it. However relevant or even important the question may be, the court will not give an advisory opinion on hypothetical facts. There are principally two reasons for this: first, the court’s function is to adjudicate on real disputes, not imaginary ones and secondly, to decide on points of law or principle when there are no facts before the court is not only undesirable, it can have unfortunate or even dangerous consequences. In this situation, the court will not have any jurisdiction to determine the question.

(2) Sometimes, however, and the present case is one, the question before the court is said to be hypothetical or academic only because the real dispute that drove the parties to litigation (sometimes called the lis) happens no longer to be in existence at the time of the hearing, even though the relevant facts giving rise to the dispute were real and had actually taken place. For example, in a civil dispute, where the defendant has openly made an offer to a claimant giving him all he is entitled to and this has been accepted, the dispute no longer exists even though it once did. The learned judge thought the question for determination to be academic in the present case since the permissions granted to Kwoon Chung to operate the free bus services had expired on 12 September 2002.

(3) In the type of situation referred to in the previous paragraph, the court does have jurisdiction to hear and determine the question in issues. However, in deciding whether or not to do so (and this can be said to be a matter of discretion), the court will closely examine the relevance or utility of any decision. In the public law sphere, this may be easier to demonstrate than in relation to private rights. This is because very often in public or administrative law cases, the duties of public bodies fall to be exercised on a continuing basis not only in relation to the parties before the court but also perhaps to others in the future. In R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450, the House of Lords reviewed the relevant authorities and stated that the court had a discretion whether or not to determine the question before it even though there was no longer a lis: see 456G‑H. However, the discretion was to be exercised with caution and the court should only do so where there was good reason in the public interest. At 457A‑B, Lord Slynn of Hadley said this:

‘The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.’

To Lord Slynn’s words, I would add this. Where the same point is likely or may well arise as between the same parties, this is, if anything, an a fortiori situation for the court to proceed to determine the question in controversy. In Eastham v Newcastle United Football Club Ltd [1964] Ch 413 (in many respects a public law case although it appears to have been a private litigation), Wilberforce J determined a question involving the use of restraint of trade clauses in the English Football League, even though the player in question (the famous player, George Eastham) had already moved from his former club Newcastle United (whom he sued) to Arsenal. The footballer’s complaint against the transfer system was one that was likely to arise again, if not to him, then in relation to other players. A similar situation arose in R v Canons Park Mental Health Review Tribunal, ex p A [1995] QB 60, where the Court of Appeal held that the issue there should be determined even though the lis had disappeared since there was a real possibility that the same issue could arise again in relation to the applicant in that case: see 68 B‑F.

(4) In other public law contexts, the court may consider determining issues where, for example, there are conflicting decisions: see R v Birmingham City Juvenile Court, ex p Birmingham City Council [1988] 1 WLR 337.” (emphasis added)

24.  Hence, where the real dispute that drove the parties to the proposed judicial review happens no longer to be in existence at the time of the hearing, even though the relevant facts giving rise to the dispute were real and had actually taken place, the issues arising from the intended judicial review that need to be resolved by the court have become academic and the court generally will not exercise its discretion to hear the matter.  The court may only exceptionally consider exercising the discretion to continue to hear it if it is in the public interest to do so.  Such exceptional circumstances include where there is a discrete point of law arising from the litigation which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future, particularly if between the same parties.

25.  Bearing this principle and approach in mind, I agree with Mr Yu that the present intended judicial reviews have become academic and the court should not entertain it.  My reasons are these.

26.  In the present case, given Professor Au’s appointment to the Post, the Post is no longer vacant for at least another three years.  Thus, by the time of the hearing, the dispute as to whether the Decision not to appoint the Candidate to the Post is wrong in law has clearly become academic and the relief sought is futile.  As submitted by Mr Yu, there is and can be no reasonably arguable legal case against Professor Au’s appointment or for her removal.  Ms Li fairly has not sought to suggest otherwise.  Hence, there is no question that the Council would need to reconsider in the near future whether to appoint the Candidate (or anyone else) to the Post.  No useful purpose can thus be served by seeking the court to declare the Decision to be unlawful.

27.  Moreover, the issues arising from the proposed grounds of challenge as to whether there was procedural unfairness in the decision making process, whether the Council took into account any irrelevant considerations, and whether the Decision is supported by adequate reasons are all fact specific and sensitive relevant to the present circumstance only.  The determination of these issues would similarly be purely academic.

28.  In the premises, this case is not one where an academic issue should nonetheless be determined because, as identified in Chit Fai at paragraph 20(3), “a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”.  Leave therefore should not be granted for these applications for judicial review to proceed.

29.  Ms Li has fairly not disputed that the actual underlying disputes concerning the appointment that had led to these judicial reviews have become academic.  She has also accepted the principles laid down in Chit Fai as applicable for the present arguments.  However, leading counsel has submitted that the proposed judicial reviews (with the proposed amendments in the Amended Forms 86) fall within the exception as identified in Chit Fai, as they do raise an important general question of law, which the court should still hear and determine.  This would serve the useful purpose for guiding the future conduct of the Council.  Mr Li’s contentions run in principal as follows:

(1)   Ms Li says there is at least a reasonably arguable question of law whether the protected right to institutional autonomy and academic freedom under BL137, in the right circumstances, gives rise to as a matter of law a corresponding duty (“the Purported Corresponding Duty”) on the Council to protect that right.

(2)   In this respect, Ms Li reiterates that the office‑holder of the Post is responsible for dealing with academic and research resources, recruitment, and making policies concerning the same.  By this very nature, a decision on its appointment may well be related with questions about institutional autonomy and academic freedom.

(3)   When this is viewed against the various serious concerns raised by the media and also senior faculty members about suspected unwarranted non-merits related influence on the Council in deciding whether to appoint the recommended candidate to the Post, it raises at least a reasonably arguable case about whether the Purported Corresponding Duty had arisen in these circumstances.  Once and if the duty had so arisen, the Council is subject to the public law scrutiny as to whether, in making the Decision, the procedure it had conducted is fair, whether it had taken into irrelevant considerations, and whether it has given adequate reasons for the Decision.

(4)   Given these are important general questions of law concerning the important right under BL137, the court should proceed to hear the judicial reviews.  The mere fact that, given the appointment of Professor Au, there may not be any practical purpose for quashing the Decision or declaring it to be unlawful vis‑à‑vis the filling in of the Post, the court could and should still hear these judicial reviews to clarify these important aspects of the law and give guidance for the future conduct of the Council.  In this respect, Ms Li further relies on Secretary for Justice v Commission of Inquiry Re Hong Kong Institute of Education [2009] 4 HKLRD 11 as an example where the court can in judicial review effectively give a view to clarify the point of law concerning institutional autonomy even if the underlying factual dispute had become academic.

30.  Although Ms Li’s arguments bear initial persuasion, I am with respect not eventually convinced.

31.  As her above submissions reflect, the fundamental argument in her case is that in law there is the Purported Corresponding Duty on the Council to protect the institutional autonomy and academic freedom provided under BL137.

32.  In this respect, Mr Yu has submitted that this proposition is not supported by any authorities and is in any event not arguable at all as a matter of law.  This is so since BL137 by any objective reading is only to provide a right to educational institutions for maintaining their autonomy and having academic freedom.  That cannot somehow create a duty in law on those very institutions to protect these rights as contended by Ms Li.  Institutions who complain that their rights have been infringed can of course come to the court to seek remedy, but that is a far cry from saying that somehow the institutions themselves are imposed with a duty in law to protect their own rights.  As rightly pointed out by Mr Yu, it is trite that the court is a court of law and will only determine the present application strictly in accordance with law.  The fact that the events surrounding the non-appointment of the Candidate may have been much politicized should play no role at all in the court’s consideration, as the court is not and should not be concerned with politics.

33.  Mr Yu’s submissions are in my view forceful.

34.  But I think the most important consideration for the purpose of deciding whether the court should still hear the judicial reviews despite their apparent academic nature is this: Ms Li’s contention even taken to the highest still rests and depends principally on the particular circumstances of the present case.  In particular, she fairly accepts that the Council is not exercising a public law function in every decision concerning staff appointment and promotion, and thus not every such decision is amenable to judicial review.[8] She therefore effectively emphasizes that it is the special nature of the Post in the present case, and the prima facie serious concerns raised in the media and by some of the HKU deans and academics in other institutions that support the imposition by law on the Council the Purported Corresponding Duty in making the Decision.

35.  In other words, her submissions on whether and when such a duty arises in law is still and again facts and case specific and sensitive.  Hence, the legal question now proffered by Ms Li is not one which “does not involve detailed consideration of the facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future”.[9] Quite to the contrary, this legal question as framed and contended (even if arguable, which I am not expressing any final view at this stage) is highly contextually based, and requires detailed consideration of the relevant specific facts and circumstances.  There is also nothing to show that a large number of similar cases exist or are anticipated.

36.  In the premises, I am not satisfied that the court should still proceed to hear these judicial reviews notwithstanding that the actual dispute underlying the challenges has already become academic.

37.  I will therefore refuse to grant leave on this basis alone.

38.  Second, Mr Yu says leave should also not be granted since the Decision is not amenable to judicial review in any event.

39.  As submitted by Mr Yu, it is well established by authorities both in Hong Kong and in the United Kingdom that the governing body of a university in dealing with staff appointment or promotion matters is generally regarded as not exercising a public law function and therefore a dispute relating to that relates to a private law but not public law question. Such decisions are therefore generally not amenable to judicial review.  This is so even if the power to appoint may be derived from the relevant statute. See: Evans v University of Cambridge [2003] ELR 8 at paragraphs 9 ‑ 12, 23; Kwan Wan Chee Alisa v City University of Hong Kong (HCAL 37/2011, 18 February 2013, Andrew Chan J) at paragraphs 10 ‑ 26; Tan Shih Ying v City University of Hong Kong [2013] 1 HKLRD 675 at paragraphs 5, 7, 28 ‑ 31, 38, 40 ‑ 41, 46, 59 ‑ 52 per McWalters J (as he then was).

40.  In the premises, a decision not to appoint a person to any university post is a domestic matter and not susceptible to judicial review.  This is so even where the university has an ultimate statutory underpinning.  The Decision is one of such decision and thus is not amenable to judicial review.

41.  Ms Li has however argued that the Decision is different given the present circumstances, and it is at least reasonably arguable that the Decision is subject to judicial review.  Leading council’s principal submissions in support of this is the same as those made in the above in support of the argument that the judicial reviews are not academic.

42.  Ms Li has also further submitted that there are cases which concern academic institution’s personnel decisions which were subject to judicial review challenges.  They are Jill Spruce v The University of Hong Kong [1993] 2 HKLR 65 and Leung Chak Sang v OFSTED [2011] PTSR 1459 (CA).  Therefore, says Ms Li, it is not that all personnel decisions of academic institutions are not subject to judicial review.  It all depends on the circumstances of the case.

43.  In relation to these cases relied on by Ms Li, it is worthy to note Mr Yu’s submissions that these cases are concerned not with appointment, but dismissal.  Mr Yu emphasizes that there is an important distinction between the two.  First, no person, least of all the present applicants, has any legal right or legitimate expectation to be appointed to a particular post, and none is alleged.  This is to be distinguished from cases concerning dismissals, especially cases where there are provisions either in the statute or in subsidiary legislation which imposes safeguards.  Second, any decision regarding dismissal involves a decision which adversely affects a person’s right and interest such that the rules of natural justice mandate procedural fairness to be observed.  Third, it is not uncommon to find statutory provisions which restrict the freedom of the public authority to dismiss and in such cases the public authority must comply with the statutory provisions, see Tan Shih Ying v City University of Hong Kong, at paragraphs 38, 42.  Mr Yu has further pointed out, however, that even in cases concerning dismissals, there are cases where the exercise of the function may be considered as private or domestic: Leung Chak Sang v Lingnan University (HCAL 638/2000, 15 March 2001, Chung J) at pp 10 ‑ 11 and Cheng Chun-ngai Daniel v Hospital Authority (HCAL 202/2002, 12 November 2004, Hartmann J) at paragraphs 15 and 27.

44.  In light of the above contentions, the merit (and thus the reasonable arguability) of Ms Li’s submissions on the amenability of the Decision to judicial review is obviously fact sensitive and specific to the present circumstances.  However, given my above conclusion that leave should not be granted to the applicants since the matter has become academic, it is neither necessary nor appropriate for the court to determine the question of whether the Decision is arguably amenable to judicial review for the present purpose.

45.  Third, Mr Yu argues that the applicants are not entitled to pursue the proposed judicial reviews, and thus leave should be refused on this basis too.

46.  Mr Yu first submits that Mr Li does not have sufficient interest or locus to bring the intended judicial review.

47.  Order 53, rule 3(7) of the Rules of the High Court provides that an applicant for leave must have “sufficient interest in the matter to which the application relates”.  This is a jurisdictional requirement essential to prevent abuse of judicial review.

48.  Lam VP in Re Wong Chi Kin (CACV 80/2014, 26 September 2014, Lam VP, Cheung and Yuen JJA) has further explained at paragraph 11 as to what may or may not amount to the requisite sufficient interest as follows:

“11. Notwithstanding the Applicant’s previous role in the Marine Department, he has no locus to represent either the Marine Department or those named officers to challenge those findings by way of judicial review. Though the requirement of standing in public law is a liberal one, an applicant must still have some interest in the matter to warrant leave being granted to him to challenge a public decision. Leave would not be granted to a meddlesome busybody, see R v Monopolies and Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763 at p 773. The relevant principles about standing in bringing an application for judicial review were considered by Rose LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386. Standing goes to jurisdiction and it has to be considered in the legal and factual context of the whole case. Merits are important. But there are other factors as well: the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, the nature of the breach of duty against which relief is sought.” (emphasis added)

49.  Bearing these observations in mind, I agree with Mr Yu that Mr Li does not have sufficient interest to apply for judicial review to challenge the Decision:

(1)   No substantive connection is shown between Mr Li’s status as an HKU undergraduate and the Decision.

(2)   This is particularly so in light of the relief sought and the academic nature of the intended judicial reviews: Mr Li fails to show how his having fuller knowledge of the reasons for the Decision affects or prejudices his interests qua student in any realistic sense: see this court’s judgment in Ng Wing Hung v HK Examinations and Assessment Authority (HCAL 79/2010, 22 September 2010) at paragraph 15.

(3)   Finally, there clearly exists in the present case the Candidate as the obvious challenger who has a greater and direct interest in the matter. 

(4)   When all these are viewed together, Mr Li’s interest, if any, is far from being sufficient to give him the necessary jurisdiction in law to bring the proposed judicial review to challenge the Decision.

50.  I will therefore also refuse to grant leave to Mr Li to apply for judicial review for lack of sufficient interest.

51.  In relation to Mr Fung, Mr Yu says that he is not entitled to bring the judicial review since his application amounts to an abuse of process.  Mr Yu’s submissions can be summarized as follows:

(1)   The proposed grounds of judicial review in Mr Fung’s intended judicial review are premised on various complaints about procedural irregularities when the Council made the Decision.[10]

(2)   However, at the material time, Mr Fung was a member of the very body whose decisional process he now alleges was unlawful. By the very nature of the collective decision‑making exercise, the Decision is attributable to all Council members at the time, including Mr Fung.  As held by G Lam J in University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd (No 2), the discussions and deliberations in the Council meetings were subject to confidentiality.

(3)   As an attending member at the Council meeting, Mr Fung had the chance to make known his views on the appointment matter.  If he considered, whether at the meeting or even afterwards, that the process was unfair or that further inquiry ought to have been made, or (allegedly) that certain statements made at the meeting were factually wrong, he could have raised the matter with the Council either at the time of the meeting, or after the meeting.  There is no evidence that he did so.  Not having done that in seeking to correct the alleged procedural defects (if there were indeed those), it is an abuse of process for Mr Fung (being the very member himself in the Council) to now seek to apply for judicial review to allege that the Council had acted unlawfully in rendering the Decision on the ground of procedural impropriety or failure to discharge the Tameside duty, or manifest factual error.

52.  The merit of Mr Yu’s above contentions of abuse of process is premised materially on the case that there is no evidence to show that Mr Fung had raised with the Council at the meeting the various procedural irregularities he now seeks to complain of.  However, given the Council’s confidentiality requirement, Mr Fung may well not be at liberty to say in evidence what he did or did not do at the meeting.  I am therefore not sure that the criticism of lack of evidence can be fully supported at this stage. In the premises, I would not conclude at this stage it is not open to Mr Fung to make the application and refuse to grant leave on this basis.

53.  Finally, Mr Yu also submits that leave should in any event be refused as none of the proposed grounds of judicial review are reasonably arguable.  Mr Yu has made some extensive and forceful submissions in support of this.  Ms Li has in substance advanced the principal submissions I have summarized in paragraph 29 above to say that all the grounds viewed in the present circumstances are at least reasonably arguable.

54.  However, given I have concluded in the above that leave should be refused as the proposed judicial reviews have become academic, I do not think it is necessary or appropriate for me to deal with the arguments on the merits of the grounds of judicial review for the present purposes.

D.   Conclusion

55.  I will refuse the applicants’ respective leave applications for the reason that the intended judicial reviews have become academic.  I will also refuse to grant leave to Mr Li on the additional ground that he lacks the necessary sufficient interest or locus to apply for judicial review.

56.  I further make a costs order nisi that there be no order as to costs, and that Mr Fung’s own costs is to be taxed in accordance with legal regulations.

57.  Finally, I would like to thank counsel for their valuable assistance rendered in this matter.