CHUA YEE YEN JENNY v. HONG KONG POLYTECHNIC

1991 M.P.No. 2825

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an Application for Judicial Review.

2. The Applicant who is a student was undertaking a Higher Diploma Course in Hotel & Catering Management at Hong Kong Polytechnic.

3. The decision in respect of which relief is sought was the decision of the Academic Appeals Committee of the Polytechnic made on the 29th June 1991 upholding the decision of the Divisional Board that she be required to withdraw from the said course.

4. Leave to proceed with the Judicial Review was granted by Duffy J. on the 17th September. When granting leave Duffy J. also granted an Ex parte interim injunction compelling the Polytechnic to permit the Applicant to continue with her studies pending any further order by the Court.

5. I regret that I must observe that it is rather surprising that the judge made this order. It is clear from the notes on p.830 of the current edition of the Supreme Court Practice that where interlocutory relief is being sought on a Judicial Review the considerations which normally have to be borne in mind when applying for injunctions are equally applicable to such cases. It is difficult to see on the circumstances of the present case why it was necessary for the judge to hear the injunction ex parte and also not to make any provision for a return date for an inter parties hearing.

6. I would have thought that it would have been desirable to hear what the Polytechnic would want to say before insisting upon the Applicant pursuing a course of studies she was not qualified to undertake.

7. The Applicant relied on 13 grounds in support of her claims to relief. They were as follows:

"GROUNDS UPON WHICH RELIEF IS SOUGHT

1. Rule 1.8 of the Student Appeals Rules of the Hong Kong Polytechnic Handbook, which reads

"The appellant shall have the right to appear before the Academic Appeal Committee and to be accompanied and/or to be represented by one other person if he or she so chooses"

is ultra vires S.18 Hong Kong Polytechnic Ord Cap 1075, is contrary to the Bill of Rights Ord and is otherwise unlawful as being unreasonable, as it does not permit an appellant to be represented by a Barrister and instructing Solicitor. In the premises the Applicant was denied a fair hearing according to law.

2. The Academic Appeal Committee ('the Committee') failed to give reasons for sufficient reasons for its determination. In particular, the Committee failed to deal with and be seen to decide the issues of sexual harassment. Notwithstanding a written submission by the Applicant, the Committee failed to address their mind to this important issue. Their decision was characterized by pre-judgment and bias.

3. The Committee did not adjourn to hear or consider evidence pertaining to the aforesaid issue.

4. The Committee failed to make any finding in relation to the harassment (non-sexual) of the Applicant by Mr. Ruddy. The Applicant was deprived of a fair hearing because Mr. Ruddy, a vital witness, was absent from the hearing. The Committee ought to have adjourned pending Mr. Ruddy's return.

5. The Examination Board ("the Board") of the Department of Hospitality Management acted in excess of jurisdiction in initially requiring the Applicant to withdraw from the course. The Board was not constituted according to law, in that an External Examiner and a Department Head of another Division were not in attendance, as required by the Hong Kong Polytechnic's Course Information Handbook for the Higher Diploma in Hotel and Catering Management.

6. The decision of the Committee is Wednesbury unreasonable. The Committee has acted upon assessments that are inconsistent,. contradictory and/or wholly subjective. The assessment has a systemic or structural weakness as it does not incorporate any independent or objective auditing standardization or marking scheme. In particular the assessments provided by the X Hotel were months late and are biased or inaccurate. The X Hotel had never previously been part of the Polytechnic assessment scheme. Further, the Committee while affirming the decision to require the Applicant to withdraw from the full-time course, permitted the Applicant to continue on a part-time basis. This decision is illogical and perverse.

7. The decision of the Board of Examiners made on 11 March 1991, requiring the Applicant to withdraw was perverse, as the only reason assigned for the decision was the failure of the X Hotel to provide the assessment reports of the Applicant. This failure was entirely beyond the control of the Applicant. The Board took into account an irrelevant consideration. It failed to take into account a relevant consideration, namely the ineptitude of the management of the X Hotel.

8. The Board and the Committee failed to sufficiently or at all take into account the fact that the Applicant was medically indisposed for much of the relevant period.

9. The Committee failed to sufficiently or at all take into account the fact that while the Manager of the X Hotel could provide a poor performance report on the Applicant, the Manager invited the Applicant to work for a further month beyond that required.

10. The Committee failed to sufficiently or at all take into account that the Applicant has only 3 months or a 3 year course to complete, and that the particular course she is said to have failed is a non-Academic unit for which no grade is given, and that it affects her career and livelihood.

11. The Board and the Committee failed to direct themselves in accordance with the true burden and standard of proof.

12. The Academic Appeals Committee Rules are ultra vires to the extent that they do not permit an appellant (or representative) to put questions to the Department representatives through the Chairman of the Academic Appeals Committee or otherwise.

13. The Committee acted unfairly in failing to adjourn the proceedings to another date, once the Committee had decided that the Appellant's two legal representatives could not actively participate in the Appeal."

8. Mr. McCoy represented the Applicant at the hearing before me. During the course of his submissions to me he reduced the scope of the grounds he was advancing to:-

1. Is Rule 1.8 of the Student Appeals Rules ultra vires s.18 of the Polytechnic Ordinance Cap.1075 being contrary to the Bill of Rights by virtue of the fact that Barristers and Solicitors were not allowed to attend appeals.

3. Whether the Committee acted unfairly in failing to adjourn the proceedings in the circumstances which prevailed and

4. Had there been a valid quorum at the meetings on the 11th March and in May when the decision had been made that the Applicant should withdraw from the course.

9. Mr. Mills-Owens for the Polytechnic helpfully indicated that while he did not accept that there was any substantial merit to the matter raised in the 4th issue he would be objecting to it being considered in this way as the Decision being attacked in the Judicial Review was the Decision made on the 29th June. The Applicant was now clearly out of time in attempting to attack these other decisions.

10. Mr. McCoy did not thereafter argue the merits of this 4th issue. This then in effect left the 3 issues as being the outstanding issues which were argued.

11. It is necessary for me to make a few remarks concerning the facts of this case. Mr. Mills-Owens complained that the affirmation deposed to by the Applicant in support of the Application was seriously_. misleading. Indeed he went so far as to submit that it was sufficiently misleading to justify an application to the court that the leave granted and the injunction should be set aside on the ground of material non-disclosure. I have to confess to a measure of sympathy with this submission.

12. The most glaring deficiencies related to the fact that the Applicant did not append to the affirmation the reports which had been made on her by the staff of the various organizations she had worked for during the course of her studies.

13. Part of the course is made up by the student being required to attend at an approved Hotel or Catering establishment and undertake duties of a type designated by the Polytechnic. These Bodies are then required to make assessments of the students in accordance with a prescribed form of questionnaire.

14. It is evident from the assessments which were provided to the Polytechnic and which had been in the Applicant's possession when she made the affirmation that she had been assessed as less than satisfactory in 23 out of 35 markings which had been made by a number of different supervisors.

15. Another very misleading aspect of the evidence which had been given by the Applicant related to her description of what had happened when she had attended before the Committee on the 29th June. She had given the distinct impression that Mr. McCoy and an Articled Clerk from the Solicitors representing her had been excluded from representing her at the hearing.

16. It is very clear from the minutes of this meeting, which are not contested, that nothing of that sort occurred. What is clear is that correspondence had been exchanged between the parties Solicitors and reference had been made to Rule 1.8. At the meeting the issue of representation had been raised at the commencement of the meeting.

17. Mr. McCoy had demanded that he himself and the Articled Clerk of his instructing Solicitors, a shorthand writer and a representative from the Students Union should be permitted to attend. Alternatively be and the ArticledClerk should be allowed to attend. If this was not agreed he requested that the meeting should be adjourned so as to enable him to apply to the High Court for appropriate relief.

18. The meeting was then adjourned shortly so that this request could be considered. When the hearing was resumed the Chairman of the Committee informed Mr. McCoy that the second alternative_.had been agreed by the Committee.

19. That is the Committee agreed that Mr. McCoy could represent the Applicant and the Articled Clerk could also attend the meeting so long as she played no active part in the proceedings.

20. Mr. McCoy had then been informed that his instructions had been withdrawn. He then withdrew from the room with the Applicant.

21. Before me Mr. McCoy submitted that the requirement that the Articled Clerk should take no active part in the proceedings meant that had he continued he would have been in breach of the Barrister's code of conduct.

22. I can see no merit whatever in this submission. It is clear from the code of conduct that the presence of a representative of the instructing solicitors in court is sufficient to meet the requirements of the code.

23. What is of particular importance is that the Applicant withdrew the instructions which had been given to Mr. McCoy. It is also clear that the Committee had complied with the alternative request which had been made by Mr. McCoy that he and the Articled Clerk should be permitted to attend. In other words the complaint made in the lst ground was in fact a self inflicted wound.

24. As a number of submissions were made to me on the law in this part of the application I propose shortly commenting thereon notwithstanding the fact that there is no merit whatever in the application on the facts which were before me.

25. Mr. McCoy argued that Rule 1.8 infringed the terms of the Bill of Rights.

26. I accept the first part of his submission that the Polytechnic is a Public Body. This is evident from the authorities he cited, Griffiths v. Smith 1941 A.C. 170. The Johannesburg 1907 p.65 and R- v Manners 1976 2 All E.R. 96.

27. I do not however accept the validity of his contention that the failure to allow legal representation before a Tribunal is a breach of Articles 1, 10 and 22 of the Bill of Rights.

28. There is nothing whatever in any of the Articles referred to the suggest the correctness of this submission. It is also significant to add that Article 11 which does refer to a Defendant's right to legal representative is clearly restricted to criminal proceedings:

"    Article 11

Rights of persons charged with or convicted of criminal offence

(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality--

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to   communicate with counsel of his own choosing;

(c) to be tried without undue delay;

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) not to be compelled to testify against himself or to confess guilt.

(3) In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

(4) Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

(5) When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

(6) No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong."

29. I am satisfied that there is nothing in the Bill of Rights to alter the common law on this subject.

30. The most helpful summary of the considerations which should be borne in mind in determining the appropriateness of legal representation being available to a party is contained in the judgment of Webster J. R. v. Home Secretary Ex party Tarrant at p.285.

" As it seems to me, the following are considerations which every board should take into account when exercising its discretion whether to allow legal representation or to allow the assistance of a friend or adviser. (The list is not, of course, intended to be comprehensive: particular cases may throw up other particular matters.)

(1) The seriousness of the charge and of the potential penalty.

(2) Whether any points of law are likely to arise. There is of course a duty to ensure that the prisoner understands the charge, a duty which is reflected in the Guide at p.12, para. 11: "Ask the accused whether he understands the charge(s) and explain anything to him about which he is in any doubt." But the clerks who sit with boards are not legally qualified and there may be cases where a legal point arises with which the prisoner, without legal representation, cannot properly deal. A charge of mutiny, which I consider later in this judgment, is at least potentially in this category for the reasons which I will give. It was also suggested in argument that difficult questions of intent might arise; but for my part, looking at the list of disciplinary offences and the way in which those offences are described, it seems to me unlikely that such questions will arise except very rarely other than in charges of mutiny.

(3) The capacity of a particular prisoner to present his own case. In "Justice in Prison," a report of a committee of Justice of which Sir Brian McKenna was the chairman and which was before the court, the following passage is quoted (para. 117, p.57) from a report by the Home Office Research Unit based on an experiment of interviewing a number of prisoners before and after adjudication of their cases:

"Some of the prisoners were poorly educated and not very intelligent. Furthermore, a few spoke poor English and a few appeared to have psychiatric problems. Unless they are given considerable assistance, it is unrealistic to expect such men to prepare an adequate written statement or to present their case effectively." (Smith, Austin and Ditchfield', Board of Visitors Adjudications, Research Unit paper 3, Home Office 1981, p.31).

As I have said, Mr. Brown does not suggest that a board has no right to admit an interpreter and there must be some cases where this is necessary. I have no doubt, moreover, that in very many cases, where assistance is necessary, the chairman of the board is capable of doing it so as to ensure the fair hearing to which the prisoner is entitled. But the standing orders, and the Guide, provide for the giving of an opportunity to a prisoner to make a written reply to the charge; and an illiterate prisoner could not make use of that opportunity without some assistance. Similarly, a board might not always be satisfied that a mentally subnormal prisoner could be assured of a full opportunity of presenting his own case merely by the assistance of the chairman of the board.

(4) Procedural difficulties. An affidavit has been sworn, in support of three of the applications, by Mr. Ivan Henry, a member of a board of visitors, a magistrate and a legal executive. He points out that a prisoner awaiting adjudication is normally kept apart from other prisoners under rule 48(2) pending the adjudication and that this may inhibit the preparation of his defence. He points out that without the capacity to interview potential witnesses, prisoners are often unable to satisfy boards of visitors that it is reasonable to call a witness and that, where a prisoner asks questions through a chairman, there is frequently no effective presentation of a case or effective cross-examination or testing of the evidence. I will consider, in more detail, the questions of calling witnesses and cross-examination later in this judgment. But in my view a board, when considering the exercise of its discretion, should take into account any special difficulties of the kind I have mentioned and should particularly bear in mind the difficulty which some prisoners might have in cross-examining a witness, particularly a witness giving evidence of an expert nature, at short notice without previously having seen that witness's evidence.

(5) The need for reasonable speed in making their adjudication, which is clearly an important consideration.

(6) The need for fairness as between prisoners and as between prisoners and prison officers.

In my view, all these are matters which a board should take into account in deciding whether to allow legal representation, or the assistance of a friend or adviser, bearing in mind the overriding obligation to ensure that a prisoner "be given a full opportunity of hearing what is alleged against him and of presenting his own case": rule . 49(2)."

31. An approach along similar lines was adopted by the  Court of Appeal in The Commissioner of Correctional Services v. Lai Ho Ming Unreported being Civil Appeal 121/89.

32. What has to be borne in mind in the present case is that the Committee was an informal one which was primarily concerned to consider the Applicant's academic achievements to date and whether her performance was such as to justify the decision which had been made that she should be requested to withdraw from the course. It would seem to me that in adopting the criteria referred to by Webster J. that legal representation would not be appropriate before such a Committee.

33. The next ground I will deal with is the complaint concerning sexual. harassment. The Rules relating to appeals require a student to present written grounds within a limited period of time. The Applicant complied with this requirement and was also permitted to add further grounds. It is significant to note that there was no reference whatever to sexual harassment in the written grounds which were before the Committee when it met on the 29th June.

34. Also it is noteworthy that when Mr. McCoy addressed the Committee at the beginning of the hearing he made no reference to this matter. It is evident from the material, before me that this had been a matter which had been considered by both the instructing solicitors and Mr. McCoy. Before me Mr. McCoy drew my attention to the etiquette of the Bar and in particular to the requirement that Counsel should not proceed with serious allegations unless he was reasonably satisfied that they were well founded. It is perhaps surprising in these circumstances that he saw fit to maintain the objection on this ground.

35. However it is necessary to deal with it on its merits. So far as the Committee was concerned the first they heard of the matter was at the hearing on the 29th June. It may be helpful to see how the matter was dealt with in the minutes of the meeting.

36. It will be noted from the minutes that the Chairman proceeded on the basis that as the Applicant had not claimed that the alleged sexual harassment had been a material factor in the reports which had been made on her it had been proposed that her complaint should be dealt with as an independent matter.

37. At the conclusion of the meeting the Applicant indicated her wish to reserve her rights in the appeal. The Committee dealt with this as follows:

38. Notwithstanding this the Applicant did write a further letter to the Committee which referred to this complaint. I have no doubt that the Committee cannot validly be criticized for the way in which they handled this matter.

39. A further point which needs to be borne in mind is that the gentleman who was the subject of the Applicant's allegations was not one of the people who reported on her. I am not prepared to draw an inference that simply on account of the fact that he was a superior of the reporting staff they would have been prepared to make adverse comments unless cogent evidence to that effect were to be forthcoming. No such evidence exists. I do not think that there is any merit in this ground.

40. The final ground relates to the complaint that the Committee should have adjourned their deliberations in the overall circumstances which existed.

41. Again I do not think that this criticism can be maintained. I do not consider that the Committee can be faulted for not adjourning the proceedings because Mr. McCoy withdrew. As I have indicated earlier this was a self inflicted wound. It should also be borne in mind that it was clear from the correspondence which had been exchanged prior to the meeting that Rule 1(b) would be a matter which would be considered. The Applicant must have realized that it may have been necessary for her to present the appeal herself and she would have had ample opportunity to prepare herself for the appeal.

42. Another complaint which is made is that there should have been an adjournment on account of the fact that the Head of the Department was absent through no fault of his own. I do not accept the validity of this complaint. The Deputy Head of the Department was present and all of the relevant papers were available. The Head of the Department could not really have contributed anything very much which was not already in the papers.

43. I have no doubt when considering this matter as a whole that the Polytechnic have acted fairly and conscientiously in all respects and that the Applicant has nothing to complain of.

44. At the conclusion of the hearing I indicated to the parties the decision I had come to in the hope that the inconvenience occasioned by the interim injunction could at least to some extent be mitigated. These are the reasons for my Decision.