JOHN HO HUNG CHIU AND ANOTHER v. THE UNIVERSITY OF HONG KONG

IN THE COURT OF APPEAL

1996, No. 9
(Civil)

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J U D G M E N T

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Mortimer, J.A.:

1. I will invite Godfrey JA to give the first judgment.

Godfrey, J.A. :

Introduction

2. If there was ever peace in the olive groves of Pokfulam (if there were ever any olive groves), that peace was shattered a decade ago, when the first shot was fired in the internecine war which has been going on ever since between Prof. Ho Hung Chiu, John and Dr. Koo Chih Ling, Linda ("the accusers") on the one hand, and Dr. Lam Tai Hing ("the accused") on the other hand, all three of them members of the Hong Kong University. Prof. Ho is Honorary Clinical Professor in the Department of Radiation Oncology; Dr. Koo is a lecturer in the Department of Community Medicine; Dr. Lam is a reader in that Department.

The accusers' complaint

3. The accusers' complaint against the accused (expressed in academic, rather than legal, terms) is of plagiarism in respect of a questionnaire prepared by the accusers for the purposes of research into the incidence of lung cancer in women. "Heav'n has no rage, like love to hatred turn'd, nor Hell a fury, like a woman scorn'd", wrote Congreve. He must have been unfamiliar with Academe; as the history of this dispute has all too clearly demonstrated, Hell has no fury like an academic who believes his work has been plagiarised.

The original proceedings

4. This complaint was the subject of an action brought by the accusers against the accused. At its conclusion in April 1992, Bokhary, J. (who heard the case) awarded the palm of victory to the accusers, finding the accused guilty of infringement of copyright and misuse of confidential information. The accused appealed; but, in August 1993 (not without some expressions of unease), this court (Penlington and Nazareth, JJ.A. and Sears, J.) dismissed the accused's appeal.

The Vice-Chancellor's reference

5. The Vice-Chancellor, alive to this result and acting under his powers in that behalf contained in the University's Regulations (see below), then referred the matter to a domestic body, the University's Committee on Personnel Matters ("the Committee"), to conduct an inquiry into the facts.

The Committee's report

6. The Committee submitted its report to the Vice-Chancellor on 16 January 1995. In its report it reviewed the evidence (as well as stating its findings). The evidence reviewed in the report included some evidence which, the accusers say, was critical of them, and would tend to lower them in the estimation of their fellows. They complain in particular (other complaints have not been persisted in) that the Committee should not have submitted its report to the Vice-Chancellor without giving them fair warning, or advance notice, of the criticisms to which I have referred, and an opportunity to comment on or rebut the same; and that (as was the fact) they were given no such opportunity. They launched an application for judicial review of the decision of the Committee to submit its report to the Vice-Chancellor. On 24 October 1995, Findlay, J. dismissed that application. The accusers now appeal to this court.

The Committee's procedure

7. The following are the regulations under which the Committee proceeded :

"Procedures

1. The Vice-Chancellor, in his absolute discretion, has the authority to initiate proceedings for the termination of a teacher's appointment for 'good cause'. Proceedings may be initiated either :-

(a) where the Vice-Chancellor has received a complaint or complaints about the conduct of a teacher (whether or not it or they are accompanied by a recommendation for the dismissal of that teacher); or

(b) where he himself believes, for whatever reason, that there is or has been conduct by a teacher which could reasonably be or have been the subject of a complaint.

2. If the Vice-Chancellor decides that such a complaint, if proven, might be, prima facie, good cause for the termination of the teacher's appointment, he shall refer the matter to the Committee on Personnel Matters (the 'Committee') which shall conduct an enquiry into the facts on behalf of the Council.

3. Under the provisions of paragraph 2 of Statute XIV [of the University's Statutes], the Committee has the power to determine the procedure of its meetings, and it shall enquire into the complaint in whatever way seems appropriate to it in the circumstances. In particular, the Committee may, if it wishes :-

(a) call for statements in writing in relation to any of the circumstances of the complaint;

(b) call witnesses to answer questions; and

(c) call the teacher concerned to answer questions.

4. The teacher shall have the right :-

(a) to receive a copy of any statement in writing which forms part of the evidence before the Committee;

(b) to make statements to the Committee in writing or in person or both, in response to the written evidence or in relation to the general circumstance of the complaint, or both;

(c) to be present when the Committee asks questions of witnesses; and to ask questions of those witnesses; and

(d) in attending meetings of the Committee, to be accompanied by another members of the University or a legal representative.

5. In the interests of avoiding subsequent disagreement about the evidence, the Committee may, if it wishes, arrange to have all or any of its proceedings recorded and/or transcribed verbatim.

6. The Committee shall prepare a detailed report of its findings on the facts of the complaint, but shall not make any recommendation on whether the teacher's appointment be terminated.

7. The report of the Committee shall be submitted to the Vice-Chancellor. If the enquiry has established facts which prove to the Vice-Chancellor's satisfaction that the allegation is demonstrably false, the teacher shall be informed accordingly and no further action shall be taken. Otherwise the Vice-Chancellor shall forward the report to the Senate for its advice on the findings of the enquiry. At the same time, the Vice-Chancellor shall send a copy of the report to the teacher."

(The Vice-Chancellor himself initiated the proceedings before the Committee pursuant to regulation 1(b), the judgments of Bokhary, J. and of this court being his "reason" for doing so.)

The Vice-Chancellor's reaction to the Committee's report

8. On 19 January 1995, after considering the Committee's report, the Vice-Chancellor concluded that "the allegation" that "the accused's conduct constituted such misconduct as rendered him unfit to continue in office" was "demonstrably false" (see regulation 7, above). He directed that copies of the report be sent to members of the Council, and Senate, of the University. This was done, under cover of a letter from the Registrar dated 19 January 1995. That letter contained a paragraph reading as follows :

"Although there is no obligation under the procedures for the Vice-Chancellor to inform members of the Council and the Senate of his decision, he has decided to do so because of the importance of this case to academics everywhere. In addition, you may wish to know that the Vice-Chancellor will be holding a press conference at 5:00 p.m. on Friday, January 20, 1995, because of the intense public interest in this matter, extending as far as the Legislative Council. The Vice-Chancellor also believes that the Report and his decision need the widest possible distribution, so that the University will be able to rebut any accusation of concealment."

9. The report consequently received wide publicity.

The Committee's criticisms of the accusers

10. The Committee, taking a different view of the whole matter from that of Bokhary, J. (and of this court), exonerated the accused. It did criticise the accusers. The Committee expressed the opinion that they should not have asserted that the accused had "surreptitiously" obtained a copy of their questionnaire. It commented that its access to certain relevant material had been frustrated by the accusers' failure to consent to them being given such access. It considered it was wrong of the accusers to have withheld from them the address of a research assistant of theirs (one Nancy Lee) whose assistance the Committee wanted to obtain. It considered it was wrong of the accusers to have alleged that the accused was under pressure from a Canadian funding agency and had concealed information from it. It felt that the accusers had misled the Committee by putting forward the opinion of foreign experts on their questionnaires, when the material was in fact incomplete. It recorded that a number of epidemiologists had expressed surprise at the accusers' claim to confidentiality in their questionnaire (one of them had described this, in an expression to which the accusers understandably take particular objection, as "academic malpractice") and the opinion of these epidemiologists or some of them that their questionnaire was inferior to that of the accused (though the Committee stigmatised as "leading" and "highly tendentious" the letter soliciting the views of these epidemiologists). It recorded its view that the accusers had exaggerated the novelty and difficulty of their research in the field. And it expressed the opinion that the questionnaire devised by the accusers was not an original piece of work.

11. All these criticisms the accusers regard as defamatory : and that, as their leading counsel accepted, is the gravamen of their complaint of unfair treatment.

The judgment

12. In a thorough and careful judgment, setting out the facts at considerable length (an exercise I do not consider it necessary to repeat) the judge rejected the accusers' complaint against the Committee to which I have referred above (and which is the only complaint now pursued before us).

The function of the Court of Appeal

13. The function of this court is to examine the decision of the judge to dismiss the application of the accusers for a judicial review of the decision of the Committee to submit its report to the Vice-Chancellor. We in this court are not concerned to re-visit, yet again, the conclusions of Bokhary, J. in the action to which I have referred, or the conclusions of this court on the appeal from Bokhary, J.; the interested may refer for this purpose to the judgment of Bokhary, J. reported in [1992] 2 HKLR 314 and the judgments of this court on the appeal reported in [1994] 1 HKLR 329 (the Committee itself was not bound to accept, nor even to defer, to such conclusions; those conclusions were material to its inquiry for no other reason other than the fact that they had prompted the inquiry). We in this court can interfere only if the judge has made some error of law in deciding to refuse the relief sought by the accusers.

The law

14. The judge concluded (and the University accepts) that the Committee did owe a duty of fairness to the accusers. But, said the judge, that duty :

"..... extended only so far as to give them sufficient notice of the issues and questions that would be considered, to allow them to express their views and give evidence on these matters, to consider what they had to say carefully, and give it due weight. This the Committee did."

(I should add to this that the accusers chose to submit their own evidence to the Committee in written form; they did not accept the Committee's invitation to them to tender oral evidence, a matter on which I make no comment, save that it deprived the Committee of the opportunity it would otherwise have had of putting to the accusers, in the course of their evidence, the criticisms which had been made of them.) The judge refused to go so far as to hold, as the accusers contend that he should have done, that the duty extended to giving the appellants an opportunity to comment on or rebut the criticisms made of them, before the Committee finalised its report. In my opinion, the judge was clearly right. As Lord Diplock pointed in Cheall v. APEX [1983] 2 AC 180, at p.190B, cited by the judge :

"Decisions that resolve disputes between the parties to them, whether by litigation or some other adversarial dispute-resolving process, often have consequences which affect persons who are not parties to the dispute; but the legal concept of natural justice has never been extended to give such persons as well as the parties themselves rights to be heard by the decision-making tribunal before the decision is reached."

15. In my judgment, in domestic proceedings such as these, those who are responsible for the accusation made against the person sought to be disciplined take the chance that their accusations may be rejected, and that accordingly they may be laying themselves open to criticism by the decision-making body in the course of its explaining its reasons for rejecting their accusations. If they are criticised, as the accusers here claim that they have been criticised, "gratuitously", the law affords them a remedy; an action for defamation. Of course, a report such as that made by the Committee here is protected by privilege; but the privilege is only a qualified privilege. If, for example, a report such as this contained "gratuitous" criticisms (e.g. criticisms actuated by malice) the defence of qualified privilege would not succeed; nor (perhaps) would it succeed if the criticisms were unjustified and the report were published (as, at the instance of the Vice-Chancellor, this one was) to the public generally : see Chapman v. Lord Ellesmere [1932] 2 KB 431. I see no reason at all why the accusers here should be allowed any relief by way of judicial review for the protection of their "academic and personal reputations", which protection, as indicated in their notice of application for leave to apply for judicial review, was the purpose of their application. I appreciate that sometimes natural justice does demand that a witness at an inquiry held under statutory powers, and to whom the tribunal is minded to attribute the whole or some degree of blame for the events the subject of the inquiry, should be given an opportunity, before the report of the inquiry is finalised, to comment on the criticisms which the tribunal intend to make of him; see; e.g., In re Pergamon Press Ltd. [1971] Ch 388; Mahon v. Air New Zealand Ltd [1984] 1 AC 808; R. v. Life Assurance Unit Trust Regulatory Organisation Ltd., ex parte Ross [1993] QB17, (see esp. per Glidewell, L.J. at p.50); and the local case, at first instance, of the Barquentine Osprey [1987] HKLR 549 (a case which seems to me to push this principle up to and possibly beyond its outer limits and which I would not wish to be taken as approving). But the present, in the opinion of Findlay, J., was not such a case and I entirely agree with him. Here the accusers were, at the most, mere witnesses; not the persons whose conduct was the subject of the inquiry. In my opinion, natural justice does not require an accuser who has chosen not to give oral evidence to be given an opportunity to rebut criticisms made of him during the course of a domestic inquiry such as this before the report of the inquiry is finalised. It would be, to say the least, curious if a domestic tribunal were to be subjected to a higher standard in this respect than the courts of justice, which never give any party, still less any witness, any such opportunity.

The result

16. Since the judge made no error of law in concluding that the Committee had not dealt unfairly with the accusers (although it did not give them any opportunity to comment on the criticisms of them which it proposed to make in its report) I see no reason to interfere with the judge's conclusion; and, for the reasons I have endeavoured to state, I would be in favour of dismissing this appeal, with costs.

Mayo, J.A.:

17. There is a significant difference between the issues which had to be determined by Findlay J at the outset of this judicial review and the situation which had to be resolved by us at the conclusion of Mr Denis Chang QC's submission on behalf of the appellants.

18. Before Findlay J they sought an Order of Certiorari, a Declaration and an injunction. In effect they required the Certiorari to quash the report exonerating the conduct of Dr Lam who was the subject of an investigation into his alleged misconduct. The declaration was sought to declare that the Personnel Committee had not acted fairly towards the appellants in that they had not been provided with an opportunity to make comments upon the evidence of Dr Lam and other witnesses who had given evidence to the Committee. In addition to this they had been given no opportunity to make comments upon some of the criticisms which had been made of them in the Report.

19. The injunction sought was intended to restrain the University from further publishing the said Report.

20. As can be appreciated this was a wide ranging Judicial Review necessitating canvassing a large body of evidence and law.

21. Mr Dennis Chang accepted that the only matter which remained open to him was the complaint that the Committee had not afforded the appellants any opportunity to comment upon the critical observations which had been made by some of the Academics who had been invited to comment upon the matters referred to in a standard letter they had been sent by Dr Hedley which had attempted to set out some of the issues which had to be determined by the Committee.

22. As will be appreciated from the facts (which have so helpfully been included in Godfrey JA's judgment) the appellants were not parties to the investigation which was being undertaken by the Committee. There was some debate before us as to exactly what their role was.

23. They declined the invitation to attend before the Committee to give evidence. They were however permitted to present a lengthy submission in which they made out their case that the judgment of Bokhary J as he then was at first instance and the judgment of the Court of Appeal which substantially upheld his findings of fact established that Dr Lam had indeed been guilty of misconduct.

24. It appears to have been accepted that they were rather more than just witnesses giving evidence before the Committee. It would appear to be more realistic to proceed upon the basis that they assumed a role more resembling that of a Prosecutor.

25. This would seem to be the case even though it was the Vice Chancellor who made the reference to the Committee. He did so on the basis of the said judgments.

26. It is however imperative to bear in mind that the purpose of the investigation was to make findings of fact and report to the Vice Chancellor upon whether Dr Lam had been guilty of misconduct.

27. One of the matters which had to be considered was the extent (if any) to which the Committee owed a duty to the appellants to entertain representations from them. As I have said the Committee did accept and consider a lengthy submission which was tendered to them by the appellants. Mr Dennis Chang however goes further and submits that as the reports contained material which was either directly or inferentially critical of the applicants they were entitled to receive a copy of the report in draft and be given an opportunity of making representations upon it.

28. Mr Dennis Chang placed heavy reliance upon what he described as being the Glidewell principle. This principle was gleaned from p50 of the judgment of Glidewell LJ in R. v. Life Assurance Unit Trust Regulatory Organisation Ltd. Ex parte Ross [1993] QB 17.

"I accept that very frequently a decision made which directly affects one person or body will also affect, indirectly, a number of other persons or bodies, and that the law does not require the decision-making body to give an opportunity to every person who may be affected however remotely by its decision to make representations before the decision is reached. Such a principle would be unworkable in practice. On the other hand, it is my opinion that when a decision-making body is called upon to reach a decision which arises out of the relationship between two persons or firms, only one of whom is directly under the control of the decision-making body, and it is apparent that the decision will be likely to affect the second person adversely, then as a general proposition the decision-making body does owe some duty of fairness to that second person, which, in appropriate circumstances, may well include a duty to allow him to make representations before reaching the decision. This will particularly be the case when the adverse effect is upon the livelihood or the ability to earn of the second person or body."

29. He contended that the appellants met the criteria referred to by Glidewell LJ and that as damaging criticisms had been made of them which were detrimental to their reputations as Academics a Declaration should be made by the Court in suitable terms.

30. Mr Adrian Huggins QC for the University accepted in general terms that the Committee did owe a duty to be fair to the appellants. However he submitted that this had been fully discharged by the Committee. He went on to argue that the circumstances of the present case were entirely different to those being considered by Glidewell LJ.

31. Some guidance in determining what might constitute "appropriate circumstances" can be derived from p1049 of the speech of Lord Bridge who delivered the judgment of the Privy Council in Public Disclosure Commission v. Isaacs (P.C.) [1988] 1 WLR 1043.

" The complainant succeeded in the Court of Appeal on the alternative ground that the so-called audi alteram partem rule applied. The principle underlying the rule is clearly expressed in the judgment of Lord Denning M.R. in Reg. v. Race Relations Board, Ex parte Selvarajan [1975]1 W.L.R. 1686, 1693-1694, where he said:

'In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion .... In all these cases it has been held that the investigating body is under a duty to act fairly: but that which fairness requires depends upon the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely afflicted by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.'

With respect to the Court of Appeal, their Lordships do not think that this principle has any application to a complainant under the Act of 1976, save in the case already considered and not here applicable where the commission are minded to report to the Attorney-General under section 8(3) that the complaint was groundless. In any other case the complainant is not liable to be subjected to any pains or penalties or exposed to prosecution. He is not seeking to enforce any private right, so there is no question of depriving him of any remedies or redress to which he may be entitled. He is acting as a public spirited citizen in giving information to the commission to assist them in the performance of their public duty. Any personal or political interest he may have in the outcome is irrelevant. He cannot be 'told the case made against him and be afforded a fair opportunity of answering it' because no case is made against him; it is he who makes a case against the declarant. It was submitted for the complainant that he was adversely affected by the publication in the Gazette of the commission's conclusion that his complaint was not substantiated. Their Lordships cannot accept that this is a matter of sufficient weight to prevail against the countervailing considerations to which attention has already been directed."

32. What needs to be borne in mind is that the main object of the exercise undertaken by the Commission was to consider the culpability or otherwise of Dr Lam.

33. It was necessary for the Commission to consider the background circumstances in rather more detail than would normally be the case as the opinions of the various Academics who had been approached were to an extent at variance with the findings of fact made by Bokhary J. It is however important to note that the Committee did not specifically state that they accepted the validity of the views expressed.

34. Perhaps even more important than this the criticisms which are made do not allege any moral turpitude on the part of the appellants and are in my opinion of a relatively mild nature.

35. Findlay J dealt with this aspect of the application in this way at 29 of his judgment.

" There was nothing gratuitous in what the Committee said in its report. Everything criticised by the applicants was directly related to the job they had to do; the finding of the facts in relation to Dr Lam's conduct. The Committee came to the conclusion that it differed from Bokhary, J on some of the facts, especially in the light of new evidence that it had heard. In this situation, one would expect the Committee to do just what they did; that is, to spell out clearly why they so differed. To do that, it was necessary to recount in some detail what the evidence was, and its strength. Of course it may be that it was not absolutely necessary to say everything they said. Of course it may be possible to redraft what they said to avoid hurting the sensitivities of the applicants. But it is not my task to rewrite the Committee's report, nor is it the right of the applicants to seek to do so. It may be that the Committee was robust in places; I suspect this was because they thought Dr Lam had suffered a serious injustice, but I do not think they overstepped the bounds of basic fairness to the applicants. The Committee told the applicants what issues they were to investigate, and gave the applicants a full opportunity to say whatever they wished in regard to those issues. There is no complaint by the applicants that the Committee refused to hear what they had to say, or that the Committee did not pay proper regard to their submissions. It was only when the Committee came to conclusions that the applicants did not like that they wanted to say more. Well, there has to be an end to these matters. It cannot be right to expect the Committee to give the applicants a potentially endless opportunity to dispute evidence or tentative conclusions."

36. I find myself in complete agreement with this view of the matter.

37. What is clear is that when a court finds it necessary to be critical of any of the parties to litigation or witnesses appearing before it it does not submit a draft judgment to the party being criticised or provide an opportunity for the party to comment upon the criticisms. I can see no reason or justification for a tribunal such as the Committee in this case to be required to do so. I accept the submission made by Mr Huggins that grave practical difficulties would arise were it to be incumbent upon tribunals to give parties this right. It would undoubtedly cause inconvenience and protract proceedings. It may be the case that there are circumstances when such opportunity should be provided but I am of the opinion that such cases would be exceptional.

38. I agree that this appeal should be dismissed and I would order the appellants to pay the costs.

Mortimer, J.A.:

39. For the reasons given by Godfrey JA and Mayo, J.A., I agree that this appeal must be dismissed. I add a few observations of my own.

40. A complainant, who gives evidence before a tribunal entrusted to inquire into a person accused of unprofessional behaviour, must be taken to know that even if the complaint is made in good faith and on sufficient prima facie grounds, it may be rebutted by other evidence received by the tribunal. Also, he must be taken to know that the tribunal has a duty of properly evaluating the whole of the evidence, including that of the complainant. This may involve criticism of the evidence - or even of the behaviour - of witnesses in deciding whether a case is made out against the person accused. In normal circumstances, this does not involve making out a case against or making any decision affecting the rights of the complainant if he is merely a witness.

41. As can readily be seen from decided cases, other considerations may arise if the investigation which the tribunal has the duty to undertake involves making a decision which does affect the rights of the witness. See In re Pergamon Press Ltd [1971] Ch 388; Mahon v Air New Zealand Ltd [1984]1 AC 808; and R v Life Assurance Unit Trust Regulatory Organisation Ltd, ex parte Ross [1993] QB 17 already cited by Godfrey JA.

42. The distinction between a complainant who is merely a witness and the person who may be adversely affected by a decision of the tribunal so as to give him sufficient interest to bring judicial review proceedings is well illustrated in Public Disclosure Commission v Kendal G.S. Isaacs [1988]1 WLR 1043 in the passage cited by Mayo JA.

43. It is important to note that if the tribunal in that case had been minded to decide that the complaint was "frivolous, vexatious or groundless", this would have exposed the complainant to the risk of prosecution. In such circumstances, he would obviously had been seriously affected by such a decision and fairness would have required that he be told and afforded an opportunity of answering before the decision was made. A failure to afford him such opportunity would have given him sufficient interest to apply for Judicial Review.

44. I agree with Godfrey JA that The Barquentine Osprey [1987] HKLR 549 arguably extends these principles too far. I would regard this as a decision upon its own special facts. In particular I would hold that the remedies available on judicial review are well recognised and I cannot agree with the submission of Mr Denis Chang QC (for the appellants) that this case is authority for an applicant to seek a remedy by way of "judicial pronouncement".

45. In the present case, the complainants were mere witnesses. The inquiry was into the professional conduct of Dr Lam. Natural justice did not require the tribunal to give the complainants an opportunity to answer criticisms - or perceived criticisms - of them in the course of the tribunal's proper evaluation of the evidence for and against Dr Lam. Findlay J's approach was impeccable.

46. Finally, I would note that a witness who gives evidence before such a tribunal is not left totally without remedy should the tribunal launch a gratuitous and malicious attack upon his reputation so as to defame him. Such tribunals are protected by qualified privilege only.

47. The result is therefore that this appeal is dismissed. We make an order nisi that the costs of and incidental to the appeal will be paid by the appellants to be taxed if not agreed.