PROFESSOR CHAN YAN CHEONG v. THE RESEARCH GRANTS COUNCIL OF THE UNIVERSITY GRANTS COMMITTEE

HCAL 603/2017

[2020] HKCFI 459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 603 OF 2017

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J U D G M E N T

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A. Introduction

1.  On 28 October 2015, the respondent (“RGC”) found a charge of plagiarism established against the applicant (“Professor Chan”) and debarred him from applying under all research fund schemes administered by the University Grants Committee or the RGC for 2 years (“the Decision”). His appeal was dismissed with the penalty upheld by the RGC on 7 July 2017 (“the Appeal Decision”).

2.  Professor Chan seeks leave to apply for judicial review and to re-amend his Form 86 to include additional grounds.  In summary, he challenges the procedural unfairness and wrongful imposition of penalty under inapplicable guidelines. 

3.  This is the rolled-up hearing for the application to re-amend Form 86, to seek leave to apply for judicial review and, if leave is granted, for the judicial review itself.  RGC seeks to adduce the 3^rd affirmation of Leung Chee Kay (“Leung-3^rd”) in opposition.

4.  The core issue is whether plagiarism requires an element of intention.  Professor Chan says yes and contends that, after 3 rounds of evidence, RGC has still failed to provide one definition for the term “plagiarism”.  He claims that RGC acted with procedural unfairness in failing to formulate a charge against him, failing to disclose materials and failing to disclose the identity of the panel members who gave the Decision and Appeal Decision.  The RGC also allegedly failed to give adequate reasons for its finding of plagiarism.  In imposing the penalty, RGC relied on guidelines (“New Penalty Guidelines”) that were not in force at the time the alleged plagiarism occurred.

5.  RGC’s case is that plagiarism is a matter of academic judgment and is non-justiciable.  Sixteen eminent professors and the City University of Hong Kong (“CityU”) had considered Professor Chan’s case and held the unanimous view that his alleged unintentional failure to acknowledge the source of information was plagiarism.  That could not be considered as wrong or irrational.  Professor Chan was always aware of the charge against him and suffered no prejudice or unfairness from an alleged failure to define plagiarism or to formulate a charge against him.  The other procedural grounds were without merit.  The only arguments on failure to provide precedent cases against him related to penalty only.  The RGC had never applied the New Penalty Guidelines to Professor Chan.  The penalty had lapsed even before the Appeal Decision was rendered.  Issues have become academic.  There are no exceptional circumstances to justify exercise of the discretion to entertain this academic challenge.

B. Undisputed background

6.  The facts are largely not disputed and are taken from the helpful summary of Mr Wong SC, leading Mr Miao.

7.  In the application for funding carelessly signed off as principal investigator (“Funding Application”), Professor Chan included a Figure 2(b), described as a “Representative image of a nano-electronic device showing intricate structure of the nano-interconnect.” (“Figure”) No source was acknowledged for this Figure. 

8.  The Funding Application was submitted in April 2013.  It was administered by the RGC.  The lack of acknowledgement for the Figure prompted the RGC to investigate into a possible case of plagiarism.  In gist, the investigative process leading up to the Decision was as follows:

(1)     In October 2013, after seeking clarification of the source of the Figure from Professor Chan, the RGC invited him to make further representations on adopting the Figure but omitting to make acknowledgement (“the Omission”).  Professor Chan replied that the Omission was due to oversight.  He gave an apology as early as 17 October 2013.  He asked for the Figure to be withdrawn.  This was not allowed.

(2)     In March 2014, the RGC asked the CityU to produce an investigation report attaching Professor Chan’s explanation, stating whether the alleged misconduct was substantiated, as well as CityU’s views on whether they accepted the report.

(3)     Professor Chan explained to the Investigation Panel appointed by the CityU that (i) the Figure was irrelevant to the core idea of the Funding Application; (ii) he had asked his postdoctoral researcher to remove the Figure, and was under the impression that the Figure had been removed; (iii) the Omission was due to oversight.  At this stage, Professor Chan already made the point that plagiarism had to be intentional.

(4)     The Investigation Panel accepted the explanation and found no evidence to suggest that the Omission was intentional.  However, the panel specifically left open the question of whether or not plagiarism had been committed as being beyond its mandate.

(5)     The Vice-President (Research and Technology) (“VP”) of the CityU said that the matter was likely to be an oversight than intentional plagiarism.  He endorsed the “findings” of the Investigation Panel that the alleged misconduct was not substantiated (when there were none).  The report of the Investigation Panel and the supporting materials including Professor Chan’s explanations (“Institutional Report”) were sent to the RGC.

(6)     The Investigation Working Group (“IWG”), comprising the then chairman of the relevant subject panel, plus 2 members of that panel, considered, amongst others, the Institutional Report.  The Case Summary provided to them referred to the alleged misconduct as “plagiarism”. While the IWG members agreed that the Omission was not intentional, all of them agreed that Professor Chan should be disqualified from funding (albeit for varying lengths of time).

(7)     The matter was then referred to the DC (comprising 5 of its 7 members), which considered, amongst others,the Institutional Report, the IWG’s views, and one precedent case.  The Case Summary provided to the DC referred to the alleged misconduct as “plagiarism”.  While none of the DC members suggested that the Omission was intentional, all of them insisted that Professor Chan should bear responsibility for his application. Four DC members recommended a penalty of debarment and one, a letter of warning.  The DC Chairman recommended a debarment of 1 or 2 years.

(8)     Next, RGC considered the recommendations of the IWG and DC members, and the Institutional Report. The Summary provided to the RGC referred to the alleged misconduct as “P”, meaning plagiarism.  During a meeting on 20 June 2015, the RGC decided to endorse the DC Chairman’s recommendations and imposed a penalty of 2-year debarment from 20 June 2015 to 19 June 2017. The RGC then communicated the Decision and the underlying reasons to Professor Chan by a letter dated 28 October 2015, ie the Decision (and later the correction of typo in a letter dated 15 December 2015).

9.  Professor Chan appealed.  In the process, various documents were provided to him, including the views of members of the IWG and the DC which were adopted by RGC.

10.  In his appeal:

(1)     Professor Chan maintained that whereas plagiarism should be intentional, the Omission was not.

(2)     The materials, including the Institutional Report and 2 sets of appeal submissions, were first considered by the Appeal Board (“AB”), comprising 3 members who had not been members of the IWG or the DC.  The identities of these members were communicated to Professor Chan.  The sole impropriety considered by the AB was “plagiarism”.  Whilst recognising that the Omission was an oversight, the AB members agreed that Professor Chan should bear responsibility.  The majority of the AB endorsed the DC’s recommendation of 2‑year debarment.

(3)     The RGC then communicated these findings to Professor Chan, and invited him to make a final representation, which he did.  He repeated that plagiarism had to be intentional.

(4)     The appeal was then considered by DC (Appeal), which was formed pursuant to the restructuring of the DC between 2015 and 2016.  The DC (Appeal) consisted of 5 members who were entirely new to the case.  After considering the materials, including the Institutional Report, the views of the IWG, DC and AB, and the submissions from Professor Chan, the DC (Appeal) agreed that lack of intention should not affect liability for plagiarism, but should operate as a mitigating factor for the penalty to be imposed.  It considered the charge of plagiarism to be substantiated, and recommended a 2-year debarment for Professor Chan.

(5)     At a meeting on 17 June 2017, the RGC considered the DC (Appeal)’s report and endorsed its recommendations.  The RGC’s decision and reasons were communicated to Professor Chan by a letter dated 7 July 2017, ie the Appeal Decision.

11.  In summary, the Figure only formed part of the background of Professor Chan’s proposal and was not referred to in the Application Form, or the main text of the Application.  The mistake was mainly due to negligence and oversight on the part of Professor Chan, without an intention to mislead.  In fact, he made no claim of originality as to the Figure.  He had asked his post-doctoral researcher to have the Figure removed before submitting the Application Form and thought that it was removed.  It was unanimously agreed that he did not have intention to plagiarize.  Despite all these, he was convicted of plagiarism.

C. Intended grounds for judicial review

12.  This application raises 7 Grounds, in the draft re-amended Form 86:

(1)     Ground 1 - whether the Decision and the Appeal Decision are subject to “academic immunity” and cannot be subject to review? (“Justiciability Ground”)

(2)     Ground 2 - Whether the RGC’s failure to define “plagiarism” and to properly formulate the charge of plagiarism against Professor Chan amounted to a breach of natural justice, irrationality or illegality on the part of the decision-maker? (“Lack of Definition Ground”)

(3)     Ground 3 - Whether the lack of an opportunity for Professor Chan to make representation on materials, including case precedents exchanged between the IWG and the DC (but not disclosed to Professor Chan), amounted to breach of natural justice? (“Non-Disclosure of Materials Ground”)

(4)     Ground 4 - Whether the failure by the RGC to disclose the identity of the persons in the IWG and DC in relation to the Decision, and the Appeal Decision, amounted to a breach of natural justice? (“Non-Disclosure of Identity Ground”)

(5)     Ground 5 - Whether the RGC had failed to give adequate reasons for the finding of plagiarism, amounting to a procedural impropriety? (“No Adequate Reasons Ground”)

(6)     Ground 6 - Whether, in relation to the Appeal Decision, the RGC had wrongly taken into account the New Penalty Guidelines (which were not in force at the time the Application Form was filed) in upholding Professor Chan’s penalty? (“Penalty Ground”)

(7)     Whether Professor Chan satisfies the other requirements of standing, and no delay for the purpose of bringing this judicial review?

13.  RGC takes no issue on Ground (7).  Mr Wong SC, points out that it is not open to Professor Chan to challenge the Decision as there was an appeal which led to the Appeal Decision.  As there is no separate issue arising out of the Decision which is not covered by the challenge to the Appeal Decision, Mr Wong SC, rightly, did not pursue this point.

D. Guiding principles for granting leave to apply for judicial review

14.  Leave for judicial review will only be granted if the applicant can demonstrate a reasonably arguable claim which enjoys realistic prospects of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, §15.

15.  Where the impugned decision has become academic, the court will approach the application for leave with a higher degree of scrutiny in order to be satisfied that there are exceptional circumstances to warrant leave: Kwok Cheuk Kin v Secretary for Transport and Housing, HCAL 136/2015, 4 January 2016, §103 (Zervos J, as he then was).

16.  The Court’s approach to an academic review was summarised by Ma CJHC (as he then was) in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465, §20:

(1)     The Court will not entertain an application where the question is purely hypothetical or academic, however relevant or even important the question may be.  The court will not give an advisory opinion on hypothetical facts.

(2)     Sometimes, the question is said to be hypothetical or academic only because the real dispute that drove the parties to litigation 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 court does have jurisdiction to hear and determine the question in issue.

(3)     In deciding whether to hear the question in issue, the court will closely examine the relevance or utility of any decision.  The court has a discretion, which should be exercised with caution; and only where there is good reason in the public interest.

(4)     Good reasons may be found where there is a real possibility that the same issue could arise again in relation to the applicant or where there are conflicting decisions.

E. Ground 1 – Justiciability Ground

17.  A distinction should be drawn between a challenge to (i) an academic judgment requiring knowledge of academic conventions, which is non-justiciable: R (on the application of Mustafa) v The Office of the Independent Adjudicator for Higher Education [2013] EWHC 1379 (Admin), §§56, 60-61 (Males J); and (ii) the procedural fairness or rationality of the decision, which is reviewable: R (Gopikrishna) v Office of the Independent Adjudicator for Higher Education [2015] EWHC 207 (Admin), §188 (HHJ Curran QC).

18.  A university is equipped to consider issues of academic judgment in breadth and in depth, but on which any judgment of the courts would be jejune and inappropriate.  In Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, §12, Sedley LJ.

19.  Insofar as this application challenges the procedural fairness, which Mr Cooney SC confirms to be the case, counsel are in agreement that it is justiciable. 

20.  To the extent that it requires an adjudication on whether plagiarism requires an element of intention and whether Professor Chan committed plagiarism, I hold that it is non-justiciable.

F.  Ground 2 - Lack of Definition Ground

21.  There are 2 limbs to this Ground: (i) failure of RGC to adopt a generous definition of plagiarism and (ii) failure to formulate precisely the charge.  Mr Cooney SC submits that the investigative bodies and decision-makers worked out the definition around the facts, rather than decide the definition first before applying it to the facts.

22.  With regard limb (i), the persons involved did not use one definition for the term plagiarism.  Mr Cooney SC submits that in view of the seriousness of the offence involving academic dishonesty, a more generous definition of plagiarism which required intention should have been used for the purpose of assessing the culpability of Professor Chan’s conduct: Bell v Victoria University of Wellington [2010] WL 5054870.

23.  Members in the process were aware of there being numerous definitions.  One member of the AB stated:

“There were numerous definitions of plagiarism but the most accepted one would be “the use of ideas, concepts or words without appropriate acknowledgement of the source”. It did not state that it had to be deliberate. For example, according to the Oxford University’s web page, “plagiarism may be intentional or reckless, or unintentional …”

24.  In fact, as Mr Cooney, SC points out, at the time of the appeal, the DC (Appeal) decided to use what he described as an “open” definition of plagiarism, ie

“plagiarism could be defined as intentionally or unintentionally failing to acknowledge the source of ideas or quoted text in a creative work.”

25.  This last definition was in itself a definition.   It was a matter within the academic judgment of the DC (Appeal).  It was not shown to be irrational or perverse.  It was not correct to say that the decision-makers worked out the definition around the facts. The question of intention was at the forefront of the deliberation by every body/panel.

26.  Professor Chan referred to the website of the Run Run Shaw Library of the CityU which stated that:

“According to the Cambridge Dictionaries Online, to plagiarize is ‘to use another person’s idea or a part of their work and pretend that it is your own’.

It is an act of using someone else’s ideas, words, concepts, images, sounds, formulae or date without acknowledging the source, either intentionally or accidentally. It is therefore a dishonest practice of claiming credit for something you did not do.” (underline added)

27.  I agree with Mr Wong SC that that has to be read with the statement elsewhere in CityU’s website that plagiarism “can be defined as intentionally or unintentionally failing to acknowledge the source of ideas or quoted text in a creative work”.  One of the common excuses for plagiarism given, as regards students, on the same webpage was “I didn’t have time to check my citations and references”, which was the case of Professor Chan here.

28.  The choice between different definitions of plagiarism requires knowledge of academic conventions regarding the use of references in academic work.  Whether it requires an element of intention falls into the question of research integrity and hence the expertise of academics, not the courts. 

29.  Mr Cooney SC has not shown any authority which gave an affirmative and exclusive definition for plagiarism as requiring intention.

30.  On the other hand, Mr Wong SC refers to Black’s Law Dictionary, which contains several definitions of plagiarism:

(a)     “The deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own; wrongful appropriation of another’s expression of ideas, or of the ideas themselves, by slight variation of expression; specif., the act of stealing passages from someone else’s compositions, … Generally, plagiarism is immoral but not illegal.” This definition does not require intention.

(b)     “Plagiarism … is not in fact a legal doctrine.  True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts.  Plagiarism occurs when someone - … a neglectful professor, … - falsely claims someone else’s words, … as his own.”  This requires knowledge of falsity.

(c)     “An idea, phrase or story that has been copied from someone else’s work without attribution ...” This definition does not require intention.

31.  Even if the definition of plagiarism is justiciable, it has not been shown why the unanimous decision of 16 academics was erroneous as a matter of law, perverse or irrational.

32.  With regard limb (ii), Mr Cooney SC submits that, whilst RGC repeatedly used words such as “misconduct”, “impropriety” and “plagiarism”, it never formulated a complete and precise charge against Professor Chan. Professor Chan was thus deprived of a chance of knowing the case against him and hence unable to answer to the charge.

33.  In Linda Flanagan v University College Dublin [1988] IR 724 at 731, Barron J held that:

“Clearly, the charge of plagiarism is a charge of cheating and as such the most serious academic breach of discipline possible. It is also criminal in its nature. In my view the procedures must approach those of a court hearing. The applicant should have received in writing details of the precise charge being made and the basic facts alleged to constitute the alleged offence.”

34.  The purpose was to give the applicant a chance to discover how the case against him or her was being put, or to test its strength by cross-examination: Linda Flanagan, at 731.

35.  In addition, it is to enable the applicant to make “meaningful and focused representations” to the adverse materials: Asia Television Ltd v Communications Authority (No 2) [2013] 3 HKLRD 618 at §61 per Kwan JA (as she then was).  The question is not whether the applicant would be better off with the disclosure of the further information it seeks, but whether the procedure adopted by the respondent was actually unfair: at §106.

36.  Mr Cooney SC submits that, had the DC and the DC (Appeal) correctly directed itself to apply the more generous definition of plagiarism, Professor Chan would not have been convicted.  At the very least, the DC and the DC (Appeal) would have been able to correctly distinguish Professor Chan’s conduct as an honest mistake.

37.  With respect, I am unable to see how it could be said that the single “charge” of plagiarism could have been better formulated.  The subject matter, the document involved, the alleged conduct, were all set out in the very first letter to Professor Chan and in all invitations to make representations.  Professor Chan always knew that it was “an alleged suspected case of plagiarism against [him], concerning the source of Figure 2 (b) on Section 2 (c) on page 11 of the application".  See page 1 of his Explanation for the interview date of 15 April 2014.

38.  In all of his representations, Professor Chan admitted the Omission. He put forth his best case in defence – that it was an oversight and that unintentional conduct was not plagiarism.  He was never denied an opportunity to make representation.  His representations at all levels of investigation or hearing had always been consistent, meaningful and focused: Asia Television Ltd v Communications Authority. 

39.  Intention became an issue as a result of Professor Chan’s defence.  Each of the investigative bodies and the RGC itself was clearly aware of the Report of the Investigation Panel and Professor Chan’s defence.

40.  For his appeal, Professor Chan was given the views of all investigative bodies and the findings of the AB members before the DC (Appeal) made its recommendation.

41.  I am unable to see how Professor Chan could have put forth a better case if the charge was formulated (say, in the criminal case sense).  Mr Cooney SC fails to show, apart from what he said to be lack of a definition of plagiarism, that the finding on the undisputed facts was irrational or perverse.  The Lack of Definition Ground is not arguable.

G. Ground 3 – Non-Disclosure of Materials Ground

42.  The duty to give reasons is a function of due process and therefore of justice.  A decision-maker should give reasons for his decision so that the losing party is left in no doubt why he has lost and whether he may have an available appeal on the substance of the case: Flannery & anor v Halifax Estate Agencies Ltd [2000] 1 All ER 373, at 377j – 378e.

43.  Failure to supply the appellant with a copy of the report of the board of inquiry, which contained matters highly prejudicial to him and which had been sent to and read by the adjudicating officer before he sat to inquire the charge was a blatant breach of natural justice as it failed to afford the appellant “a reasonable opportunity of being heard” in answer to the charge: Kanda v Government of Malaya [1962] AC 322, 338

44.  Professor Chan claimed that on 20 June 2015, members of the DC met and endorsed the DC Chairman’s recommended findings on the 26 alleged cases. Those 26 precedent cases were highly relevant to his conviction and/or imposition of penalty.  And yet they were secretly circulated among the IWG, DC and DC (Appeal) members without his being given an opportunity to make submissions.

45.  Further, he pointed out that in an undated internal document of the DC entitled “List of Cases referred to Disciplinary Committee”,it was recorded that a list of 28 cases (including that of Professor Chan’s case) had apparently been circulated amongst members of the DC.  On that list, except for Professor Chan’s case, the other 27 cases were redacted.  It was pertinent to note from the list that the DC remarked that, since Professor Chan did not claim originality of the Figure and that the Figure was only in the background but not in the search result, the DC took the view that “[t]he issue needs attention but is not worthy of disqualification – Letter of Warning would suffice”.

46.  Still further, Professor Chan pointed out that in sentencing, the DC (Appeal) appeared to have heavily relied on one “precedent case” identified as “Project No.: ECS 104212” (“the ECS case”).  It was a case where “many sentences in the proposal were copied”. The debarment from applying for RGC grants was for 5 years.  It was clearly distinguishable from Professor Chan’s case on the facts. 

47.  There was support for his view that more than one precedent case was referred to because according to the document entitled “Research Grants Council – Discipline Committee (Appeal) Report” dated 8 June 2017, it was stated that:

“The level of penalty was imposed in accordance with the [“New Penalty Guidelines”] endorsed by the RGC and with reference to precedent cases.” (underline added)

48.  Professor Chan stated that he was simply not aware of the more lenient stance of a warning letter initially taken by the DC and/or DC (Appeal) and was not given a chance to persuade their Members not to impose a penalty heavier than that. There was no candid disclosure as to what caused the abrupt change of stance by the DC both at the time of the Decision and the Appeal Decision.

49.  Mr Leung denied any secret exchange and pointed out that the ECS case was the only precedent given to RGC.  What in fact happened was that on 20 June 2015, RGC (not DC as alleged) considered and decided 26 cases together, including Professor Chan’s, which had been investigated by the DC up to 30 May 2015.  The other 25 were thus not “precedent” cases.  Only one out of those 25 cases concerned plagiarism.  There was no indication that RGC referred to those cases when making the Decision.  To the contrary, it was the RGC’s stated policy that the DC Chairman would recommend penalty by reference to previous as opposed to concurrent cases.

50.  The ECS case was an Earlier Career Scheme case.  It was not disclosed to Professor Chan.  DC and the RGC distinguished that precedent and noted the huge differences.  They all recommended a more lenient penalty than 5-year debarment.  Thus, the non-disclosure of this single precedent to Professor Chan did not cause him any prejudice.

51.  Mr Leung also pointed out that the document entitled “List of Cases referred to Disciplinary Committee” was the reply from one of the 5 DC members relating to Professor Chan’s and other cases.  It was not a collective view of the DC on Professor Chan’s case.  That DC member was the only person out of the 16 academics who did not recommend debarment.  The contention that the DC had abruptly changed its stance was misconceived.

52.  Mr Leung’s case was supported by documentary evidence.  I find the failure to disclose the ECS case to be breach of natural justice but it did not prejudice Professor Chan.  The view of the DC member on giving a warning letter was part of the discussion of members and not a recommendation of the DC as a body. 

53.  Anyway, failure to disclose “precedents” was only relevant to penalty.  Ground 3 is arguable but, for the reasons given under Ground 6, it has paled into irrelevance.

H. Ground 4 – Non-Disclosure of Identity Ground

54.  Professor Chan contended that he was convicted and penalized by anonymous people who constituted the IWG, DC and DC (Appeal).  He was unable to determine whether membership at each level overlapped, and whether the decision-makers were independent, competent, unbiased or not in conflict of interest. 

55.  Mr Cooney SC submits that the need to protect the privacy of the members of the IWC, DC and DC (Appeal) or fear that those members would be approached by a person under investigation was overwhelmingly outweighed by the need to protect Professor Chan’s interest in having a fair hearing at both the DC and DC (Appeal) levels.

56.  Mr Leung gave evidence that there was no overlap in membership. The members of each of IWC, DC and DC (Appeal) were drawn from panels which were matters of public record.  Professor Chan could have ascertained and challenged membership.  Professor Chan was told who the members of the AB were. The truly “anonymous” members who had considered his case would have been the 1^st and 2^nd Readers who were not decision-makers.

57.  Professor Chan had not earlier raised any issue as to membership of any of the investigative or decision-making body on the ground of anonymity.  Having known the identities now, he has not said how he had been prejudiced.  I find the Non-Disclosure of Identity Ground unarguable.

I.   Ground 5: No Adequate Reasons Ground

58.  Mr Cooney SC contends that there was procedural irregularity in that there was a failure to give adequate reasons for the Decision and Appeal Decision.  There were no explanations as to why:

(1)     Despite the fact that plagiarism had different definitions, the DC/DC (Appeal) chose one which did not require intention to be an element of the offence;

(2)     The view taken was at odds with City U’s view that the alleged misconduct was not substantiated; and

(3)     There was a change in stance in penalty from one of warning letter to 2-year debarment.

59.  The legal principles are not in dispute and I adopt the summary of Mr Wong SC.

60.  Sufficiency of the reasons must be assessed against the context of its decision (including the legal framework in question), the factual circumstances of the case, common sense and the particular history of a matter.  That said, where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the courts are entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork. See Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, §98, Stock JA.

61.  The applicant bears the burden of showing that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision: South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953, §36, Lord Brown of Eaton-under-Heywood.

62.  If the applicant cannot demonstrate that he could have done something to improve the situation or his chance of success if given fuller reasons, he has not suffered prejudice to warrant the Court’s intervention: Leung Sze Ho Albert v Bar Council [2016] 5 HKLRD 542, §73 (CA).

63.  Even if the reasons given are inadequate, the appropriate relief is to order mandamus requiring the decision-maker to give proper reasons for its decisions, rather than to quash the decision altogether: Hong Kong Canadian International Hospital Foundation Ltd v Secretary for Justice, HCAL 131/2006, 4 May 2007, §100, A Cheung J, as he then was.

64.  Where the decision was made through the collective effort of an administrative body rather than by a single person, the decision should be judged by the general tenor of the discussion rather than individual views expressed by the members of the administrative body.  R (Enstone Uplands & District Conservation Trust) v West Oxfordshire DC [2009] EWCA Civ 1555, §15 (Sullivan LJ).

65.  Provided that the decision sets out clearly the grounds on which the decision has been reached it is unnecessary that all the thinking which lies behind it should also be made available: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, §170 Lord Clyde.

66.  The short answer to Mr Cooney SC’s submission is that Professor Chan simply failed to show how the alleged failure to give, or to give adequate reasons had prejudiced him.

67.  Firstly, RGC and all the other bodies involved have explained more than sufficiently why Professor Chan was found guilty of plagiarism.  Their general tenor of the decisions showed that they had accepted his defence of negligence, oversight and lack of intention.  They explained why he lost.  He could understand the reasons and put forth submission in the appeal.  I repeat the analyses under Ground 2 above.

68.  Professor Chan identified one member of the AB who referred to “numerous definitions”, but that member went on to state that the “most accepted” one did not require “deliberate” use of information but could be unintentional. That was a view shared by the other 15 academics.

69.  Secondly, there were no inconsistencies between the findings of City U and the RGC:

(1)     In the Institutional Report, the Investigation Panel had specifically left open the question of whether plagiarism was committed.

(2)     In his letter to the RGC addressing its opinions on the Institutional Report, the VP merely stated that the Omission was more likely to be an oversight than intentional plagiarism.  CityU’s official view of plagiarism included unintentional acts: paragraphs 26 and 27 above.

(3)     While the VP endorsed strongly and supported the “findings” of the Investigation Panel that the alleged misconduct was unsubstantiated, he had simply misunderstood the Investigation Panel as it did not say that plagiarism was not substantiated.

70.  Thirdly, RGC has never changed its stance on penalty.  See paragraph 51 above.

71.  Taking the factors in this section into account, I am not satisfied that Ground 5 is arguable. 

J.  Ground 6: Penalty Ground

72.  Mr Cooney SC submits that the 2-year debarment was irrational and disproportionate.  He relies on Naim Abusheika Osama Hassan Salha v The General Medical Council[2003] UKPC 80, where Lord Hoffmann quashed a 3-month suspension and substituted it with a reprimand, noting that the plagiarism involved was unintentional and there was no justification of a finding of dishonesty or lack of integrity.

73.  The Salha case may not be an appropriate comparison as a 3‑month suspension from practice was much more serious than the 2‑year debarment in this case. 

74.  More importantly, as pointed out by Mr Cooney SC, the only guidelines which were in existence for sentencing purposes at the time Professor Chan submitted the Application Form was the document entitled “Guidelines on Determination of Penalty for Research Misconduct and Adverse Performance Records”, dated June 2012 (“the Old Penalty Guidelines”). The maximum penalty thereunder for plagiarism was 5-year debarment from all research funding scheme.  There was no provision for minimum penalty.

75.  The New Penalty Guidelines only came into force in December 2016, and had no retrospective effect on Professor Chan’s conduct which happened in April 2013.  Yet, in the DC (Appeal)’s “Minutes of Tele-Conference on 3 April 2017” and “Part II: Comments from DC (Appeal)” of the “Discipline Committee (Appeal) Report, the DC (Appeal) concluded at §2.2(e) that:

“According to the [New Penalty Guidelines] endorsed by the RGC, the level of penalty for plagiarism ranged from two to five years debarment … The PI was imposed a minimum level of penalty for plagiarism case, i.e. two years debarment. As such, Members agreed to uphold the original level of penalty.” (underline added)

Mr Leung simply could not explain why the New Penalty Guidelines were applicable and why there was a reference to a minimum penalty.

76.  Professor Chan has raised an arguable ground on legality.  I grant him leave to amend Form 86 and to apply for judicial review.

77.  Upon judicial review, I find that the RGC plainly erred in law in applying the New Penalty Guidelines in imposing penalty.

78.  The court has discretion to grant an order quashing the penalty or making a declaration that the penalty was unlawfully imposed.  However, for 3 reasons, I decline to grant such relief:

(1)     The penalty had been served even before the Appeal Decision came into being.  There is no point remitting the matter for Professor Chan to be penalized again, however light the penalty.

(2)     The penalty being served also rendered this judicial review academic.  The Decision and Appeal Decision were confined to the particular circumstances of Professor Chan.  There was no suggestion that similar cases are expected to arise or that there is a wider public interest involved.  Among the 26 cases considered at the same time by RGC, only 2 concerned plagiarism. The two did not involve similar legal issues as the present case.  Applying Chit Fai Motors, there is no good reason in the public interest to exercise the discretion to hear an academic question.

(3)     Whilst the Appeal Decision wrongly referred to the New Penalty Guidelines and the minimum penalty of 2 years, the Decision itself did not so err.  The DC had considered a whole range of penalty including a warning letter (one recommendation only), 1-year debarment and 2-year debarment, in the light of their acceptance that Professor Chan did not intentionally commit plagiarism.  Mr Cooney SC could not demonstrate the Decision to be irrational or perverse.  To the contrary, the DC was able to distinguish the more serious ECS case from Professor Chan’s.  Given that the Old PenaltyGuidelines expressly described plagiarism as “very serious” and the penalty was a maximum of 5-year debarment plus the current year, Professor Chan’s culpability was plainly recognized as being on the low side.

K.  Conclusion

79.  The definition of plagiarism is within the authority of the RGC to decide.  It has not been shown that their definition was perverse or irrational.  There was no procedural unfairness committed by the DC and DC (Appeal), except the failure to disclose a distinguishable precedent and use of wrong penalty guidelines.  Even so, in the exercise of its discretion, this court declines to grant the relief of declaration or to quash the penalty as the penalty had been served and this judicial review has become academic.  I therefore order as follows:

(1)     There be leave to re-amend Form 86;

(2)     There be leave to RGC to file Leung-3^rd;

(3)     There be leave to apply for judicial review solely on the Penalty Ground;

(4)     That the judicial review be dismissed; and

(5)     On a nisi basis, costs should be to RGC to be summarily assessed on paper.  Failing agreement as to costs, RGC shall lodge and serve its costs statement within 21 days of the handing down of this judgment.  Professor Chan shall lodge and serve his grounds of objection within 14 days thereafter.

79.     I thank counsel for their assistance.