SO CHING YAT v. THE CITY UNIVERSITY OF HONG KONG PUTATIVE

HCAL 61/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 61 OF 2016

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D E C I S I O N

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Introduction

1.  The applicant was a student of the Bachelor of Engineering (Honours) at the City University of Hong Kong who did not pass a compulsory project in his final academic year from 2012 to 2013. 

2.  On 10 March 2016, he filed a notice of application for leave to apply for judicial review (Form No. 86) in relation to various decisions concerning his grade for the project which all took place in 2013.  It is clearly apparent that the application is significantly out of time and that is the principal issue in this decision. 

3.  In order to apply for judicial review, the leave of the court is required.  An application for leave is made ex parte by filing a notice together with a supporting affidavit.  The application may be determined without a hearing, that is, on the papers, although an applicant may request a hearing in the notice of application.  See Order 53, rule 3 of the Rules of the High Court (RHC).  The request for a hearing at the leave stage is further addressed in the Practice Direction SL3 at §§6 and 7.  It is explained that a judge will initially consider the application without a hearing, but if he or she is minded to refuse leave and an oral hearing has been requested, then in that event an oral hearing will be conducted.  Even though it is an ex parte application, it is open to the court to invite the putative respondent or putative interested party or parties to attend the hearing to participate in the proceedings.

4.  In the present case after perusing the papers, I was minded to refuse leave, primarily on the basis of delay.  As the applicant requested an oral hearing in the event that the Court was minded to refuse leave on the papers, I fixed an oral hearing to which I also invited the putative respondent to attend if it so wished. 

5.  There is a strict time limit by which an application for leave to apply for judicial review should be made and this is fully explained in Order 53, rule 4, and the Practice Direction at §9.  Later in this decision I will discuss in greater detail the underlying rationale for the time limit and the relevant applicable legal principles. The issue of delay in this application was a significant one and was the principal basis on which I was minded to refuse leave on the papers and why I refuse leave now. 

Background to the application

6.  The applicant was a student of the Bachelor of Engineering (Honours) in the Electronic and Communication Engineering programme of the City University of Hong Kong and in his final academic year from 2012 to 2013, he did not pass a compulsory two-semester course which consisted of implementing and presenting an assigned engineering project. 

7.  The applicant complains that his progressive assessment had been downgraded without notice to him which was only revealed after he was informed that he had failed the course on 31 May 2013.

8.  Before I set out a chronology of events, I think it would be helpful at this juncture to provide a brief description of the mode of assessment for the project in question. 

9.  The University had issued “A Guide to Final Year Project Assessment for Staff and Students 2012-2013”.  It sets out in some detail the mode of assessment in section 1.0. It explains that the percentage amount contributed by the final year project to the final degree award is approximately 20%.  It also explains how the project is to be assessed by a Supervisor and Assessor.  The project is given an assessment at various stages and includes an oral presentation.  It is stated at the conclusion of the section that:

“It should be noted that in order to pass the course, students are required to (i) conduct an oral presentation, (ii) achieve an overall pass (D) grade or above, and (iii) both supervisor and assessor have not assigned a final Fail grade.”

10.  Mr Hectar Pun, SC, for the University, in oral submission seemed to suggest that in order for a student to receive a pass grade, he should not receive a fail grade from either the Supervisor or the Assessor. 

11.  The University disclosed the marking sheets for the applicant’s project.[1]  The marking sheets set out the Point-Grade mapping table.  The scale in ascending order for the point score is from 0.00 to 4.30 and for the grade is from F to A.  For instance, for a point score of 4.01 to 4.30, the grade would be A+ and for a point score of 0.00 to 0.80, the grade would be F. 

12.  In the present case, the Supervisor gave a point score of 0.8 and received a grade of F.  The Assessor gave a point score of 0.8 but this was revised.  It is stated by way of handwritten notation on the Assessor’s marking sheet alongside the point score of 0.8 in brackets “Mark after arbitration” and underneath this it was stated “Mark before arbitration = 2.2”.[2] In a further document alongside the score of 0.8 by the Assessor is the handwritten notation “Revised to 0.8 from 2.2 after arbitration process.” 

13.  As is apparent from what has taken place, the Assessor’s point score and grading were revised from 2.2 and C+ to 0.8 and F. 

14.  On 4 June 2013, the applicant applied for a Course Grade Review to the Course Leader.  A review was conducted by the Course Leader who on 18 June 2013 confirmed the grade.  He advised the applicant:

“After careful re-check on the points/marks you obtained from the progress report, presentation, supervisor and assessor, there were no irregularities/errors found. Both your supervisor and assessor gave you a fail (F) grade. Under the current FYP assessment scheme, if the points given by both the supervisor and the assessor are below 0.81, the project should be assigned a Final Grade of ‘F’. Therefore, the final grade of your FYP (EE4181) remains the same, i.e. a fail grade of ‘F’. A grade review of your FYP by your supervisor and assessor is attached for your reference.”

15.  The reference to FYP is an acronym for Final Year Project. 

16.  It was at this stage that the applicant by email dated 20 June 2013 asked for a detail breakdown of the assessment sheet of his FYP but concluded by noting “Meanwhile, I will retake the FYP in the coming year and attend the FYP lottery session on 24 June 2013.”[3]  It appears the applicant did retake the FYP but for some reason after several months stopped the project and terminated his course with the University. 

17.  On 2 July 2013, the applicant applied for a Formal Grade Review under the University’s regulations to the Dean of the College of Science and Engineering.  On 19 July 2013, the Dean replied under cover of letter dismissing the applicant’s request for review.  He quoted the Academic Regulations for 3-year Undergraduate Degrees 11.7 which state:

“For formal review of course grades, only requests with the following grounds will be considered:

(i)   there has been a procedural irregularity in the assessment process; for example, the assessment was not conducted in accordance with the Academic Regulations or with the arrangement prescribed for the course;

(ii)  there exist circumstances that impact the course grade awarded and that the student was unable to bring to the attention of the Course Leader prior to the assessment for valid reasons.”

18.  The Dean concluded that there was no procedural irregularity or extenuating circumstances and no further review was required.[4]

19.  On 29 July 2013, the applicant appealed the decision of the Dean to the Associate Provost.  In response to the applicant’s appeal,  the University produced a copy of the assessment documents as requested by the applicant.  It was upon receiving the documents that the applicant first became aware that the assessor’s assessment had been downgraded to a fail.  He took this point up with the Associate Provost in further correspondence on 24 and 27 September 2013. 

20.  The Associate Provost in a letter dated 8 October 2013 rejected the applicant’s appeal and stated:

“...The grounds of your request and all factors stated in your letters submitted to the Dean of the College of Science and Engineering, to the Head of Department of the Electronic Engineering and to me have been reviewed. Based on all the documents collected, it is found that:

a) There was an academic judgement that you did not achieve any of your project objectives outlined in your report, and repairing the damaged circuit board and measuring the voltage and current waveforms did not form parts of project “progress”. Failed grades were thus assigned to each assessment component in the project supervisor’s Project Assessment Form (Implementation and Report) on this ground. In this regard, your claim that the failed grades assigned deviated from the examples of evidence given in the “Guide to Final Year Project Assessment for Staff and Students – Information for 2012-13” was considered as a disagreement with the academic judgment which does not constitute valid grounds for grade review in accordance with clause 11.7 of the Academic Regulations for 3-year Undergraduate Degrees (AR). Your claim therefore does not constitute any procedural irregularity in the assessment process.

b) The grade “C” and the general comment on the Project Assessment Form (Progress) was an interim assessment of your project progress in Semester A 2012/13. As you did not attend the project meeting, did not submit your progress report, and did not achieve any one of the project objectives, the “zero progress” comment was given on the project supervisor’s Project Assessment Form (Implementation and Report) at the end of assessment in Semester B 2012/13, Therefore, the alleged discrepancy does not constitute any procedural irregularity in grading the project progress.

c) The Department’s arbitration process was established under the University’s moderation guidelines to resolve the disagreement with academic judgment between the project supervisor and the project assessor. There is no procedural irregularity in the arbitration process.

d) It is noted that training and educational activities at the university is exempted from the relevant requirement under the Electricity Ordinance (Cap. 406) and the Factories and Industrial Undertakings Ordinance (Cap. 59) is not applicable to non-profit making such as universities. Besides, there is no evidence that the Department has failed to comply with the University’s safety policies and guidelines as referred to in your review request, In this regard, the safety issue cannot give rise to any extenuating circumstances for the grade review request.

e) According to the email of your classmate, “No one was hurt” in the alleged explosion incidents. There was also no mitigation request received from you together with medical certificate as required by clause 10.1 of the AR for reporting circumstances affecting the assessment after the alleged electrical shock due to the explosion incidents. It is therefore considered that the two alleged minor explosions, which might have happened, cannot give rise to any extenuating circumstances in the assessment process.

f) It is noted that your proposal of purchasing a new circuit board in early March 2013 was rejected but you had then repaired the damaged circuit board in a week’s time. In recognition of your effort, the project supervisor awarded 0.8 marks after considering that you did not achieve any one of the project objectives. As the repair work was taken into account during the grading process, it cannot give rise to any extenuating circumstances for the grade review request.

g) The College Dean has established an ad-hoc committee to consider all the documents submitted by you and collected from the Department, and also the information on the alleged minor explosion incidents, before making the decision on your grade review request. The claim that the Department deliberately withheld the explosion incidents does not constitute any procedural irregularity in the assessment process.

According to clause 11.13 of the AR, a student may only appeal against the decision of the College Grade Review Committee on the basis of procedural irregularity in the review process.  As there is no procedural irregularity for the College to dismiss the formal grade review request and no other extenuating circumstances is observed, there is no prima facie case of this appeal.  I thus decided to dismiss the appeal.”

21.  It is particularly important to note the Associate Provost’s comments under (c), for he specifically addresses the issue of the downgrading of the Assessor’s grade through the arbitration process which he explains comes within the University’s moderation guidelines.

22.  On 28 October 2013, the applicant requested the Provost to review the decision of the Associate Provost. On 15 November 2013, the Provost advised that upon a review of the papers, the decision of the course grade review would stand.  He stated:[5]

“...

Your request for review of your course grade in EE4181 (“Project”) was dealt with under the existing mechanism of the University. I examined carefully the reasons which you purported to rely on regarding your case. I determined that the University’s earlier decision on the course grade review will stand, as the course grade review and your representation were handled fairly and in accord with the University’s procedures.

In the course of reviewing documents related to your case, I read the email you sent to your Project supervisor on 3 March 2013 regarding your participation in EE4181:

“I would like to apologize that I haven’t attended the meeting before and much lagging behind the schedule of the project because of my individual problem and I fully understand it is an irresponsible and immature behaviour as a student.  And I have some serious queries and harsh challenge for project. ...”

I hope that you will resolve to give the completion of your studies at CityU your full effort and I wish you success in doing so.”

23.  Communications continued between the applicant and various officers of the University about his grade.  The position of the University was that all remedies within the established procedures of the University had been exhausted and that the matter was at an end. 

24.  On 29 November 2013, the applicant informed relevant officers of the University that he intended to initiate a judicial review and to withdraw from his studies until the proceedings were resolved.[6]  

25.  There were further representations and communications about the case but nothing came of it.  

26.  It is important to note, however, that solicitors on behalf of the applicant (the solicitors now acting for the applicant in these proceedings) in a letter dated 1 August 2014 wrote to the Associate Provost, referring to his letter to the applicant dated 8 October 2013 and raising the issue of the downgrading and requesting copies of certain documents and complaining that their client had a legitimate expectation that any alleged arbitration process and/or moderation guidelines would be enforced and disclosed in an open and transparent manner.  They concluded that if their demand was not met they had standing instructions from the client to proceed with further legal action.  There followed an exchange of correspondence on the issue between the legal counsel of the University and the solicitors for the applicant.  The solicitors for the applicant made a final reply dated 11 November 2014 to a letter from the legal counsel dated 27 October 2014.  

27.  I should note that it is of significance that the applicant had solicitors acting for him in this period from August to November 2014 and as he had indicated in pervious communications that judicial review proceedings would be instituted.  This goes to the issue of delay.

28.  In February 2014, the applicant applied for legal aid but was unsuccessful, although he continued with his application until December 2015.  In a second affirmation from the applicant filed just before the oral hearing, he sets out the events relating to his application for legal aid.  He stated that he made an application for legal aid on 25 February 2014 which was refused by letter dated 11 June 2014. He appealed the decision but at the appeal hearing the matter was withdrawn. He claims it was withdrawn on understanding that the refusal of his application would be overturned. 

29.  On 11 September 2014, the Department of Legal Aid informed him that its previous refusal was still in effect.  He said that his appeal was restored which was heard on 16 October 2014 and allowed.  However, he said that on 26 May 2015 he was informed that his application for legal aid was again refused.  He said that he again appealed the decision which was first brought on for hearing on 30 July 2015 but adjourned until 3 December 2015.  On 6 December 2015, his appeal was dismissed.  He claims that it was at that stage that his father agreed to provide him with financial assistance to privately fund his intended application for leave to apply for judicial review.  He said he instructed his legal representatives in relation to the judicial review in early January 2016.  As I have pointed out, the same firm of solicitors that dealt with the University during the latter half of 2014 were also the solicitors that the applicant instructed to make an application for leave to apply for judicial review.

30.  Two important points need to be made.  First, the applicant was fully aware of the remedy of judicial review in November 2013 when he put the University on notice that he intended to seek redress through such proceedings.  Secondly, the applicant was in a position to commission solicitors in the latter half of 2014 to raise with the University the issue of the downgrading which is the subject of the applicant’s application for leave to apply for judicial review.  This is highly relevant to the issue of delay. 

The notice of application

31.  As I have mentioned, all the decisions in relation to which judicial review is sought by the applicant occurred in 2013.  There were six decisions mentioned in the notice which are as follows:

“(1) The Decision of Respondent dated 31^st May 2013 to assign a grade of failure for the EE 4181 ‘Project’ course which the Applicant is enrolled in (“the Project”) to the Applicant (“the 1^st Decision”).

(2) The Decision of the Respondent on or around 23^rd May 2013 to adopt a process of arbitration and/or moderation, and thus revising the grade assigned by the second assessor of EE 4181 (“the 2^nd Decision”).

(3) The Decision of the Respondent dated 18^th June 2013 to dismiss the Applicant’s request for a Course Grade Review of the 1^st Decision and/or 2^nd Decision (“the 3^rd Decision”).

(4) The Decision of the Respondent dated 19^th July 2013 to dismiss the Applicant’s request for a Formal Grade Review to review the 1^st Decision and/or 2^nd Decision (“the 4^th Decision”).

(5) The Decision of the Respondent dated 8^th October 2013 to dismiss the Applicant’s appeal against the 4^th Decision (“the 5^th Decision”).

(6) The Decision of the Respondent dated 12^th November 2013 to dismiss the Applicant’s appeal against the 5^th Decision (“the 6^th Decision”).”

32.  It is worth noting the relief sought in the notice seeks to raise constitutional arguments in what appears to me to be an effort on the applicant’s part to get around the inordinate and undue delay in filing his notice.  The relief sought in the notice is described as follows:

“1. An order of certiorari to bring up and quash the 1^st Decision made on 31^st May 2013 to assign a grade of failure for the EE 4181 ‘Project’ course which the Applicant is enrolled in, and a declaration that the 1^st Decision is unconstitutional.

2. An order of certiorari to bring up and quash the Decision of the Respondent on or around 23^rd May 2013 to adopt a process of arbitration and/or moderation, and thus revising the grade assigned by the second assessor of EE 4181, and a declaration that the 2^nd Decision is unconstitutional.

3. An order of certiorari to bring up and quash the Decision of the Respondent dated 3^rd June 2015 to dismiss the Applicant’s request to review the 1^st Decision and/or 2^nd Decision, and a declaration that the 3^rd Decision is unconstitutional.

4. An order of certiorari to bring up and quash the Decision of the Respondent dated 19^th July 2013 to dismiss the Applicant’s request for a Formal Grade Review to review the 1^st Decision and/or 2^nd Decision, and a declaration that the 4^th Decision is unconstitutional.

5. An order of certiorari to bring up and quash the Decision of the Respondent dated 8^th October 2013 to dismiss the Applicant’s appeal against the 4^th Decision, and a declaration that the 5^th Decision is unconstitutional.

6. An order of certiorari to bring up and quash the Decision of the Respondent dated 12^th November 2013 to dismiss the Applicant’s appeal against the 5^th Decision, and a declaration that the 6^th Decision is unconstitutional.

7. A declaration that clause 11 of the Academic Regulations for 3-Year Undergraduate Degrees (“the Academic Regulations”) are unconstitutional.”

The grounds for review

33.  There are six grounds for review.  The first is that the consideration and process of the applicant’s grade assessment was procedurally irregular.  The second is that there had been an abuse of discretion by the examiners and reviewers of the applicant’s grade.  The third is that there was a legitimate expectation by the applicant that he would be given notice or warned about any unsatisfactory progress in relation to the project.  The fourth is that the decisions are irrational and illegal.

34.  The applicant seeks a declaration that Clause 11 of the Academic Regulations for 3-Year Undergraduate Degrees is unconstitutional but no argument in support of this contention is contained in the application.  Clause 11 is lengthy and sets out the procedure to be followed for a review of course grades.  It is broken up into three sections.  The first section is Informal Resolution.  The second section is Formal Procedures for Review and the third section is Appeal Procedures.[7] 

35.  The applicant generally complains that there has been a violation of the applicant’s right to a fair and public hearing (Article 10 of the ICCPR) and to his right to education (Article 13 of the ICESCR) without putting forward any arguments or relevant authority.  He also generally complains that the decisions are disproportionate by not being informed or put on notice about his progress and by not having an opportunity to explain or remedy any unsatisfactory performance or result.  The simple answer to this is that he was informed of the downgrading and made submissions in relation to it and later even commissioned solicitors to represent him in addressing the matter further with the University. 

Delayed application

36.  The application is out of time and no satisfactory explanation has been provided.  Nor have the relevant legal principles and authorities been addressed in the application. 

37.  I would refuse the application because it is out of time, although I am also of the view that the grounds are not reasonably arguable.  The grounds amount to a disagreement over the decisions taken without showing why they are wrong or wrongly made.  There is the issue about the “arbitration” of the applicant’s grade which resulted in it being downgraded but it had been reviewed and upheld.  The attainment of academic qualifications is based on a system of assessment by teaching staff. There are regulations and procedures to address any dispute in relation to such assessment and they have been followed in this instance. 

38.  As is evident from the decisions involved, they all occurred in 2013 and therefore the application is outside the period of three months within which it is required to be made under Order 53, rule 4(1) of the Rules of the High Court (RHC).  No satisfactory explanation has been provided for the delay, nor is an extension of time sought to file the application.  The only explanation proffered for the delay is to simply ask the Court to exercise its discretion in favour of the applicant and not deny him the right to pursue a judicial review to challenge the decisions in question.  It is stated that the applicant tried his best to communicate with the putative respondent throughout the process but with limited knowledge and resources the applicant needed time to seek legal advice and gather the financial resources to institute the proceedings.  The applicant asserts that he tried to resolve the matter amicably without legal proceedings and this delayed the process as well as the time taken for the legal aid application to be processed from 25 February 2014 to 9 December 2015.  However, legal aid was denied.  In any event, the applicant did have solicitors act for him back in the latter part of 2014. 

39.  The putative respondent in its submission strongly argues that the application is doomed to fail on the ground of the applicant’s serious and inordinate delay.  The putative respondent points out that the applicant expressed his desire to pursue the judicial review as early as 21 November 2013 when he stated this in an email to the Secretary to the Council of the University.

Statutory provisions

40.  It is worthwhile noting the relevant statutory provisions that govern the issue of delay in circumstances of this type. 

41.  Order 53, rule 4(1) of the RHC provides:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

42.  Further, section 21K(6) of the High Court Ordinance, Cap 4 provides:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant-

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Legal principles on delay

43.  The approach to be taken by a court when considering an application for leave to apply for judicial review brought out of time was comprehensively addressed by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393.  The leading judgment was given by Kwan JA (with whom Lam VP and Poon JA agreed) who noted that there needs to be a good reason for extending time to file a delayed application.  Lam VP explained at §1 that:

“...what constituted a good reason for extending time is a multi-faceted question and it has to be considered in light of the facts and circumstances of the case. The seriousness of the potential consequences is part of the factual matrix which the court must take account in applying that flexible test. Possibly, amongst other things, the seriousness of the potential consequences for an applicant should affect the standard of scrutiny in the court’s assessment on the merits of the substantive application and the balancing exercise in considering potential prejudice. Though the intensity of scrutiny may be different, the underlying approach is still the same.”

44.  Kwan JA also emphasised at §35 that the principles governing the exercise of discretion to extend time for judicial review are meant to be applied flexibly, always with regard to the particular circumstances of each case.  She also noted that it is a multi-faceted exercise and that no comprehensive definition of ‘good reason’ for the purpose of extending time could be given and that the weight to be given to any factor usually to be considered would vary depending on the particular circumstances. 

45.  However, Kwan JA, after referring to the relevant statutory provisions, at §26 noted that:

“26. The relationship between these provisions was explained by Ackner LJ in R v Stratford-on-Avon District Council, ex p Jackson [1985] 1 WLR 1319 at 1325F to G and approved of by Lord Goff of Chieveley in R v Dairy Tribunal, ex p Caswell [1990] 2 AC 738 at 746G. Whenever there is a failure to act promptly or within three months, there is “undue delay”. Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

46.  She went on to summarise the relevant principles when considering an application to extend time for judicial review at §27 which she set out as follows: 

“27. ...

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of O 53 r 4(1) and s 21K(6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All ER 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi-faceted question’ the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v)     Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”

47.  It is submitted by the putative respondent that in the present case, an application to extend time should be refused without the need to go into the questions of merits and prejudice, given the substantial length of delay, and the absence of any acceptable explanation for the delay.  The putative respondent relies on the authority of Magapower Garments Ltd v Director General of Trade and Industry [2002] HKEC 301, where Chu J (as Chu JA then was) at §26 held that unless and until the applicant has shown good reasons for the delay, the question of prejudice or detriment to good administration does not arise for consideration. 

Submissions on delay

48.  Mr Hectar Pun, SC, and Mr Anson Wong Yu Yat, for the putative respondent, makes a number of points in support of his argument that the application should be refused because of undue delay. 

49.  First, he points out that there has been a substantial length of delay ranging between 28 to 34 months which is exceptional.  He refers to Fung Elvira Binag v Secretary for Home Affairs [2014] HKEC 400 at §22 per Au J; ET Investment Ltd (t/a Oasis Nursing Home) v Director of Health [2016] 1 HKLRD 1389 at §18 per Deputy High Court Judge Keith.  Both these decisions made it abundantly clear that the application should be made within the time limit as required and if it has not been then it is for the applicant to show good reason for the delay otherwise no extension of time should be granted. 

50.  Secondly, he submits that there is an absence of any acceptable explanation for the delay.  The explanation is contained in §156 in the Form 86 which was repeated in the applicant’s written submission which I have referred to earlier.  It merely suggests that the applicant used his best endeavours to resolve the matter with the University, and that legal proceedings were delayed because of his dispute with legal aid.  As I have indicated earlier these are not acceptable reasons for the delay.  He was clearly aware of his right to seek redress through judicial review proceedings and he had solicitors acting for him back in the latter part of 2014.  I agree with the submissions of Mr Pun that the explanation by the applicant that he had limited knowledge and resources fly in the face of what actually is the situation.  In addition to the matters I have mentioned, the applicant also received considerable assistance with his father who seemed to have intervened on his behalf and provided assistance very early on in this matter.  See Fung Elvira Binag at §§27 and 28 per Au J. 

51.  In the circumstances of this case, the time taken to apply for legal aid and to gather resources to mount a judicial review challenge are not in my view good reasons for extending time.  I have set out the matters that illustrated that these are not good reasons but principally because he was aware of his rights and had solicitors acting for him well before this application was made out of time.  He delayed too long making the application. 

Submissions on the grounds

52.  As stated by Mr Felix Ng, counsel for the applicant, in his written submission, the main thrust of the applicant’s complaint is that his initial scores for his project had been improperly changed and therefore in breach of the necessary procedural requirements.  As explained by Mr Ng, the Supervisor gave a grading of 0.8 for the project while the Assessor initially gave a grading of 2.2.  This was downgraded to 0.8 which meant that both Supervisor and the Assessor had failed the applicant and therefore he failed the project.  Mr Ng referred to the assessment records[8] where it is noted that the Assessor initially gave a grade of 2.2 which was changed to 0.8 after the matter had been the subject of “arbitration”. 

53.  The applicant later learned of the downgrading of the Assessor’s grade and pursued the matter internally within the University which was the subject of further decisions, namely, the 5^th and 6^th decisions.  Because of the applicant’s grading, he was required to repeat the project, which he did, but soon after he terminated the course and left the University.  Even though the relief sought is expressed in terms of being a constitutional challenge that is not the case.  It appears to me that the relief sought has been dressed up in these terms so as to get around the inordinate and undue delay that has been occasioned by the application. 

54.  In the course of oral submission, Mr Ng agreed that the essence of his client’s case was that there had been procedural irregularity in the assessment of his project when the Supervisor engaged in an “arbitration process” in violation of the rules and guidelines of the University.

55.  As already noted, on 18 June 2013, at instigation of the applicant, the Course Leader conducted a review of the assessment and confirmed the grade.  The applicant then applied for a Formal Grade Review which was conducted by the Dean who on 19 July 2013 concluded that there had been no procedural irregularity or extenuating circumstances and no further review was required.  The Dean specifically examined whether there had been any procedural irregularity.

56.  On 29 July 2013, the applicant appealed the decision of the Dean to the Associated Provost and a copy of the assessment forms were supplied to him under cover of letter dated 13 September 2013.  The applicant was requested to list any additional grounds or make any further written submission by 30 September 2013.  On 8 October 2013, the Associate Provost rejected the applicant’s appeal and explained in the body of his letter, amongst other things, that “the Department arbitration process was established under the University’s moderation guidelines to resolve the disagreement with academic judgment between the Project Supervisor and the Project Assessor.  There is no procedural irregularity in the arbitration process”. 

57.  This was a reference to the assessment which noted that the overall performance was 0.8 but in handwritten notation it said that this was the mark after arbitration and that the mark before arbitration was 2.2.  The latter mark would have constituted a pass and come within a C+ grade. 

58.  The moderation policy of the University is contained in Chapter 10 of the University Assessment Policy and Principles for taught Programmes (Version 2, May 2011).[9]  The policy statements for moderation are that moderation of all assessment tasks is an essential component of acquired best practice; information on departmental policies on the moderation of assessment tasks, marks and grades must be published to students and academic staff; Heads of Department are responsible for setting departmental policy on moderation, making arrangements for internal and external moderation of assessment tasks, marks and grades, and for ensuring that the policy is adhered to by all academic staff.  One of the stated principles for moderation is that moderation involves a range of activities which provide confirmation that assessment has been conducted accurately, consistently and fairly and addresses the quality of the assessment process, measures the outcomes and helps assess the overall fitness for purpose of the course and the programme of study.  It is also stated that Moderation of Marks/Grades aims to reinforce assessment reliability by ensuring consistency and standards between markers.  It is provided that where there is double marking and significant discrepancy between the marks of the two markers, the Department should determine its own policies in this area.[10] 

59.  It would appear that initially there was a discrepancy of marks for the project between the Supervisor and the Assessor.  Whilst the term “arbitration” has been used, it would seem that discussion has taken place between them as required by the moderation guidelines and this has resulted in a downgrading by the Assessor of his mark.  As I mentioned at the outset, the attainment of academic qualifications is based on a system of assessment which students subject themselves to in accordance with the rules and regulations of the tertiary institution.  If there is a dispute about such assessment they are subject to the rules and regulations of the University.  In the present case, I do not see any basis for the Court to intervene. 

Conclusion

60.  I would refuse the application for leave on the basis of delay.  There is a strict timeframe in place to mount a challenge by way of judicial review.  If you sit on your hands and do nothing about a public law matter, you cannot be heard to complain later unless you have a good reason to justify an extension of time.  For good policy reasons, time is of the essence, and there comes a point when the delay is too long. 

61.  The putative respondent has asked for its costs but with all things considered I have decided that there should be no order as to costs.  The basis of my decision primarily rests on the fact that this is a leave hearing which the putative respondent was invited to attend.  The applicant may wish to consider reapplying to the University to retake the course project.  Of course this would be subject to the University’s consideration and approval.