THOMAS V. PREVENSLIK v. K. F. CHENG and Others

1996, No. 100
(Civil)

IN THE HIGH COURT OF HONG KONG

COURT OF APPEAL

(On appeal from High Court Action No. A.216 of 1996)

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J U D G M E N T

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Wong, J.:

1. On 8th January 1996, the plaintiff issued a writ for damages in the sum of $188,000 against the three defendants. The statement of claim endorsed on the writ was drafted in layman language, obviously without professional assistance.

2. Be that as it may, his case is that he submitted an application to the University of Hong Kong on 10th November 1993 to pursue a programme leading to a Ph.D. degree in Chemical Physics. As part of the admission procedure, he visited the University in October 1993 and met the 2nd and 3rd defendants, both of whom assured him that he could pursue his research interests in the Ph.D. programme with all their help. The 2nd defendant further told him that there would be no problem for him to work in Hong Kong to earn an income to supplement his expenses for his studies, which, the plaintiff says, was an important factor for him to decide to come to Hong Kong as he was not a rich person. The 3rd defendant also had lunch with him and his wife and took them for a tour of the old chemistry department and its facilities. He discussed with the 3rd defendant the specific and general areas of chemical physics that he was interested in and the 3rd defendant again assured him that he would do his best to help him. He was admitted to the Ph.D. programme in Chemical Physics on 28th January 1994.

3. Things, however, did not turn out in the way that he had wanted. Instead of helping him and giving him advice, the 3rd defendant had created all sorts of difficulties for him. The matter got worse and worse. In June 1994, the 3rd defendant told him that he had to publish works on a yearly basis in an international journal, which, the plaintiff says, was not a requirement in the graduate prospectus of the University. As a result, he wrote to the 1st defendant asking for a payment of $150,000 as damages for the period from 31st January 1994 to 31st January 1995. This was rejected and it was also denied that the 3rd defendant had made the remarks regarding publication. On 5th February 1995, the plaintiff made a request that he be allowed to change the title of his Ph.D. thesis from "The Chemical Physics of Ultrasonic Cavitation" to "The Biological Effects of UV Enhanced Ultrasound on the Cleaning of Cholera from Fish Tank Water in Hong Kong." He also suggested that he should complete his research work for his Ph.D. degree in the Faculty of Medicine instead of the Faculty of Science. These requests were also rejected and he was told that he "should complete his research in the field of study for which he was formally registered."

4. He appealed against the decisions to the Vice Chancellor who appointed Professor Weatherhead to look into the matter. On 25th February 1995, the University extended his probationary period for an additional 6 months to 31st July 1995 to "focus in research in the approved field for which he was registered."

5. After discussions with Professor Weatherhead, the plaintiff indicated that he would accept a M.Phil degree in two years i.e. up to 31st January 1996. The 2nd and 3rd defendants continued blocking or obstructing his research. On 11th October 1995, he was "kicked out" of the University. He paid the tuition fees for the Ph.D. programme on 7th October 1995 which was accepted by the University. He had never wanted or accepted to take a M.Phil degree. On 23rd November 1995 the University "illegally deposited" $12,000 into his bank account which, he alleges, was an admission of guilt on their part. He had altogether spent a total of $200,000 on his tuition fees, living and other expenses during the two years of his stay in Hong Kong. After deducting $12,000 repaid to him by the University, he is still owed $188,000 and he claims this sum against the defendants.

6. A defence was filed on behalf of the defendants on 2nd February 1996 which alleges that the plaintiff's claim discloses no reasonable course of action against the defendants; it is frivolous and vexatious and is otherwise an abuse of process. It denies everything in the statement of claim and further or alternatively the defendants were at all material times acting as servants or agents of the University.

7. On 28th February 1996, the defendants took out a summons to strike out the statement of claim which was heard before Master O'Donnell on 29th March 1996 when he ordered the statement of claim to be struck out as against all the defendants.

8. The plaintiff appealed and the hearing came before Woo J. on 16th May 1996. Woo J. allowed the appeal in part and restored the claim against the 2nd and 3rd defendants while upholding the Master and dismissed the appeal in relation to the 1st defendant.

9. Against this order, the plaintiff appeals and the 2nd and 3rd defendants cross appeal.

10. In the case of the 2nd and 3rd defendants, Woo J. concluded that it was arguable that the two defendants had made negligent misstatements to the plaintiff which the plaintiff acted on and sustained loss and damages, if it could be proved that there was a special relationship between the plaintiff and the defendants.

11. The plaintiff appears before us in person as he did before Master O'Donnell and Woo J. He did not accept that his case was founded on negligent misstatement as Woo J. had found. He argued that his case was based on fraud and theft. He complained that the previous hearings in chambers behind closed doors were improper, undemocratic and in violation of the Basic Law and the Bill of Rights.

12. Mr. Reyes, who appears for the defendants here and below, submits that the plaintiff's claim as pleaded in the statement of claim might conceivably be characterised as one for breach of contract due to misrepresentation. If so, the claims against the defendants were bad in law because at all times all three defendants were acting as the servants or agents of the University and none of them entered into any personal relationship as principal with the plaintiff. If the plaintiff's claim might possibly be characterised as one in tort, seeking to recover economic loss caused by the alleged negligent or fraudulent misrepresentation of the defendants, this claim would still be bad in law as the defendants did not have any special relationship with the plaintiff as required by Hedley, Byrne & Co. v. Heller and Partners Ltd. [1964] AC 465 to found a claim for misrepresentation in tort.

13. He further submits that whatever the 2nd and 3rd defendants said could not amount to misrepresentations. On the plaintiff's own case, he pursued the interests in the Ph.D. programme before he was "kicked out". He did whatever research he had wanted. If he was denied a Ph.D. degree, the remedies are either to appeal within the Hong Kong University and to seek a judicial review of its decision, which are of course too late to pursue now. The denial of an opportunity to obtain a Ph.D. degree was never raised. At best, the alleged misrepresentation was that he was allowed to work but denied a Ph.D. degree. But where does that get us to? The second representation was that the plaintiff was told by the 2nd defendant that he could work in Hong Kong while taking part in the Ph.D. programme. This was a representation of law and not fact. The 2nd defendant was not a lawyer. There was nothing to stop the plaintiff from applying subsequently for a working visa. This representation was not relied on by the plaintiff because he must have found out after he came to Hong Kong and he nevertheless stayed on until 1995. He never complained to the defendants that he could not work or could not find employment in Hong Kong. On this, Mr. Reyes submits that there was no causative damage and it could hardly be said that there was any special relationship between the 2nd and 3rd defendants and the plaintiff, particularly on the question of the work visa. In any event, the representations were made before the plaintiff was admitted to the University.

14. Mr. Reyes says that the new allegations of fraud and theft are different from the pleaded case and it puts the defendants in an even more embarrassing position. Fraud has not been pleaded with particularity and there is not a shred of evidence to justify it. The plaintiff accuses either the Hong Kong University or the defendants of stealing his intellectual property and puts his case on the basis of the Court of Appeal decision in KOO Chih Ling (Linda) & Another v. LAM Tai Hing [1994] 1 HKLR 329. Suffices it to say that the facts and the ratio of that case are entirely different and have no resemblance or relevance to the present circumstances.

15. In relation to the case of the 1st defendant, Mr. Reyes contends that the judge was right to dismiss it and relies on the passage from the judgment at p.62M-Q:-

16. I agree with the judge in so far as the 1st defendant is concerned. In the case of the 2nd and 3rd defendants, I accept the submissions of Mr. Reyes. I would dismiss the appeal by the plaintiff and allow the cross appeal of the 2nd and 3rd defendants with an order nisi for costs against the plaintiff both here and below.

Liu, J.A.:

17. There is a good answer to every complaint of the Appellant's in the well-structured skeleton submission of Mr. Reyes which is encapsulated in the judgment of Wong, J. I agree with the conclusions reached by Mr. Justice Wong.

Nazareth, V.-P.:

18. I agree and add the following words of my own. The plaintiff is obviously deeply aggrieved about what he regards as the blockage of his efforts to get a Ph.D. from the Hong Kong University. He clearly got a very full and careful hearing from Woo J., who can be seen from his judgment to have gone to a great deal of trouble to ascertain what his complaints were and whether they could found any legal claims. As he said:

19. Before us he relied on those same facts and allegations. The only legal claims he could even remotely have on the basis of those are for breach of contract or for negligent misstatement. Neither of these claims could succeed for the reasons Woo J. originally gave and which have been amplified by Wong J.

20. However before us (without any proper notice or leave, the absence of which we overlook) he has relied on new claims which he describes first as fraud and theft, and second, as a closed chambers hearing. The latter matter was mentioned below with other irrelevant complaints and allegations, but not put forward as the basis of a claim. Moreover what that claim may be in law is not apparent. The first, he says, arises out of the research he would have done had he been permitted but which has now been "stolen" by other researchers across the world producing what he would have produced. It is not easy to see how this can be the basis of a legal claim nor how it could be sustained by the facts.

21. There is clearly no merit in his appeal, nor so far as I can see in his complaints and allegations.

22. I also would dismiss the appeal and allow the cross appeals of the 2nd and 3rd defendants and make an order nisi that the defendants are to have their costs of the appeals.

23. The appeal is accordingly dismissed and the cross appeals allowed with costs orders nisi that the defendants are to have their respective costs of the appeal and cross appeals; the order will become absolute upon the expiration of 14 days from the date of the handing down of this judgment, if no application is received before then for the appeal to be listed for the hearing of submissions on costs.