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HCAL000638/2000
HCAL 638/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 638 OF 2000
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IN THE MATTER of an Application for Judicial Review by LEUNG Chak Sang under Order 53, Rule 3 of the Rules of the High Court
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IN THE MATTER of Lingnan University Ordinance, Cap. 1165
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IN THE MATTER of the Student Disciplinary Committee of Lingnan University
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LEUNG CHAK SANG |
Applicant |
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LINGNAN UNIVERSITY |
Respondent |
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Coram: Hon Chung J in Court
Dates of Hearing: 29 and 31 January 2001
Date of Handing Down Judgment: 15 March 2001
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J U D G M E N T
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Introduction
1. This is the Judgment on the application for judicial review, leave to apply having been given on 26 October 2000.
2. It is unclear from the title of this application who is the respondent herein. In some court documents (such as the Order dated 26 October 2000 drawn up by the applicant's solicitors), the respondent was said to be "Student Disciplinary Committee of Lingnan University". In other court documents (such as the Notice of Motion dated 2 November 2000), Lingnan University ("Lingnan") was named as the respondent. Despite the difference in name, Mr Wong for Lingnan did not raise any technical objection regarding this.
The Background Facts
3. The background facts giving rise to this application are largely undisputed. The applicant is and was a student of Lingnan pursuing a Bachelor of Social Sciences degree. In December 1999, he was in his third-year. On 8 December 1999, Lingnan's Department of Politics and Sociology conducted a course pre-registration exercise. Dr William Lee was the programme Director of the Bachelor of Social Sciences Programme Office. Following a verbal exchange between the applicant and Dr Lee, Dr Lee lodged a complaint with Lingnan alleging that the applicant's attitude (in particular some of the words he said) was very rude, impolite and intimidating.
4. Several students who witnessed the incident gave statements which can be regarded as supportive of Dr Lee's complaint. The relevant parts of one statement (in Chinese) read:-
“大概於十時至十一時間，[the applicant]偕同三位同學與Dr Lee談論Pre-reg事，... 我看見Dr William Lee為那三位解答詢問時，[the applicant]突然轉身坐在座位上，氣憤憤地說：‘死不認錯，你到底都是不想認錯，我早知你一定唔會同我講!’他當時十分氣憤，態度亦比其他同學差”。
Another witness said in the statement:-
“...至十二時左右,李經文博士和［the applicant］及另外兩名大學生 ... 探討是次Pre-reg的情序［原文照錄］...［the applicant］最後對李博士說了一句：‘你根本就不肯認錯，有錯就要認啦！'然後走了”。
The third witness stated:-
“... 從我所聽到的零碎語句中，我覺得Dr Lee很有耐性和很有禮貌地解答學生的發問，然而，這幾個學生好像重重覆覆提岀pre-registry為何要‘先到先得’，對pre-registry制度不滿，無論Dr Lee怎様有禮貌，有耐性地解釋問題，他們尚未滿意”。
The fourth witness stated:-
“... 在那3位男女同學中，［the applicant］声調較為激烈和大声，强烈要求Dr William Lee‘有錯要改’”。
5. The Appeals Committee's Notes of Meetings summarized the applicant's version of the events as follows:-
"... he together with three female students went to discuss with [Dr Lee] about the course pre-registration system ... He has already known that [Dr Lee], as BSocSc Programme Director, was responsible for the pre-registration exercise and was in-charge. After talking to [Dr Lee], he realised that [Dr Lee] was not giving answers to his questions.
He was frustrated and then sat down on a seat nearby for a short while, before he talked to himself in Cantonese: 'you are wrong! Any [And] you, till you die, will not admit that you are wrong!' He was not sure whether he had mentioned the word 'die', and he was not aware when [Dr Lee] had left the venue. He considered that it was his freedom of speech to express his views about the pre-registration system, which was not meant to target at [Dr Lee]" (emphasis supplied).
Witnesses in support of the applicant's case were interviewed by the Appeals Committee and their account of the events was summarized by the Appeals Committee as follows:-
"They did not feel that someone was being impolite during the conversation. Two of them were of the view that [the applicant's] voice level was not loud, and the third thought that [the applicant's] voice was comparatively louder than that of Dr Lee and the other two female students".
Events since the Complaint
6. It is unnecessary to go into the details of the history since the time of the complaint save to state that a disciplinary hearing conducted by Lingnan's Student Disciplinary Committee ("the SDC") took place on 16 February 2000. The SDC found that the applicant's misconduct amounted to misconduct pursuant to para. 26.1 of Lingnan's Regulations Governing Undergraduate Studies ("the Regulations") and resolved to give him a reprimand. Further, he was to submit a written apology to Dr Lee.
7. The applicant wrote to Lingnan's President on 25 February 2000 seeking an appeal of the SDC's decision. The President refused to do so in his letter dated 16 March 2000. According to the evidence filed by the applicant, Lingnan learnt of the court application herein on about 18 May 2000. Legal advice was sought and, following that, the President decided to convene an Appeals Committee to re-hear the applicant's case. The applicant was informed of this decision in a letter dated 22 May 2000.
8. The manner in which the Appeals Committee conducted the re-hearing will be dealt with below. Suffice it to say at present that the re-hearing took place on 19 and 20 June 2000 and, at the end of the re-hearing, the Committee considered the applicant's behaviour to be improper and impolite to Dr Lee when he spoke to Dr Lee on 8 December 1999. It decided to give the applicant a reprimand in accordance with Regulation 26 of the Regulations.
9. Although the Amended Notice of Application seeks a judicial review of the decisions of the SDC and the Appeals Committee, Mr Pun for the applicant (correctly) agreed at the hearing on 29 January 2001 that the applicant would only challenge the decision of the Appeals Committee. The hearing before the Appeals Committee is obviously a complete re-hearing of Dr Lee's complaint and therefore superseded the hearing before the SDC.
10. Because the Appeals Committee's decision is crucial to the present application, the following passages of that decision are reproduced below for ease of reference:-
"Deliberation of the Committee
16. Having considered all the evidence given by all the witnesses concerned ... and as a result of its careful consideration of the evidence, the Committee reached the conclusion that at the time of [the applicant's] conversation with Dr Lee on the day of the pre-registration of courses, [the applicant's] behaviour was improper and that he was impolite to Dr Lee, particularly given that Lingnan University is an education institution which expects all its staff members and students alike to be courteous in dealing with people. The Committee considered his behaviour to be regrettable and decided to give him a reprimand in accordance with Regulation 26 of [the Regulations] ... As educators, we should advise the student to exercise caution in his way of expression in the future. Nevertheless, there was not enough evidence to confirm that his attitude was intimidating.
...
18. Having regard to the facts referred to in (17) above, the Appeals Committee further decided that the reprimand should not be entered into the transcript of his academic records".
"The facts referred to in (17)" of the Appeals Committee's decision were:-
"... there was frustration over the Pre-registration System. The Appeals Committee accepted that the Pre-registration System was not prefect ... ".
Is the Appeals Committee Amenable to Judicial Review?
11. The respondent argues that it is not amenable to judicial review because Lingnan is not a "public authority". The decision in Hong Kong Bar Association v. Anthony Chua (1994) 4 HKPLR 637, 642 is relied upon for the proposition that in order for a body to be a "public authority", it must be one entrusted with the discharge of governmental or quasi-governmental functions affecting the public at large.
12. Despite Mr Wong's criticisms of the first instance decision in Hong Kong Polytechnic University v. Next Magazine [1996] 2 HKLR 260 (and the Court of Appeal's reservations about it), I consider that the approach set out therein should be adopted. The court said in that decision the meaning of "public body" may vary according to the statutory context, but a starting point for the meaning of that phrase can be found in 1 Halsbury's Laws of England, 4th Ed., 6 which reads:-
"a person or administrative body entrusted with functions to perform for the benefit of the public and not for private profit".
However, the court found that a definition which merely focuses on the "functions" and "purpose" of the body is not a sufficiently comprehensive one and continued:-
"... there must be something in its nature or constitution, or in the way in which it is run, apart from its functions, which brings it into the public domain. It is unnecessary for me to identify what that might be; it may take the form of public funding, of a measure of control of governmental control or monitoring of its performance, or some form of public accountability ... " (p. 264I-J).
13. The authors of textbooks relating to judicial review seem to have much less difficulties with the notion that universities established by statute are public bodies amenable to judicial review. In Wade & Forsyth: Administrative Law (2000) 8th Ed., it was said:-
"In cases which have gone to the court, as opposed to the visitor, the court sometimes fails to explain whether the duty to observe natural justice is based upon statute or upon contract. This may make an important difference to the remedies available. If the university or college is established by statute, it may be treated as a statutory public authority subject to remedies such as certiorari and mandamus. If it is merely incorporated by charter or privately, rights against it will depend upon contract, so that the natural remedies will be injunction, declaration or damages ... " (italics supplied) (pp. 539-40).
In de Smith, Woolf and Jowell: Judicial Review of Administrative Action (1995) 5th Ed., it was said:-
"The role of the state expanded enormously over the twentieth century ... Government departments have been given 'agency' status and some of their functions have been 'contracted out'. Former public corporations have been 'privatised'. ...
Problems arise when we try to define when nominally private bodies should be guided by the same legal standards that govern the exercise of public power ...
For a great many years the way in which the courts have identified the activities which are subject to public law is by deciding whether or not they are activities to which the High Court's supervisory jurisdiction of judicial review may be invoked by aggrieved persons. In the past this was mainly done by asking what was the source of the power being exercised by the decision-maker ... Where the power is statutory or ... derived from the prerogative, then that jurisdiction could be invoked. Where, however, powers were conferred solely by a contract ... judicial review generally was not available. Today, the courts recognise such an approach is too restrictive and they are now influenced by the type of function performed by the decision-maker ...
A body is performing a 'public function' when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of way. For instance, a body is performing a public function when it provides 'public goods' or other collective services, such as ... education ... " (bold type supplied) (pp. 163, 167-8).
14. I consider Lingnan is clearly a public authority amenable to judicial review when the above are applied to the following facts: Lingnan has been set up by way of the Lingnan University Ordinance (Cap. 1165) and its objects "to provide for education, studies, training and research ... " are clearly public functions.
15. Neither the Hong Kong Bar Association decision (a decision of the Barristers Disciplinary Tribunal) nor the Hong Kong Polytechnic University decision (an action in defamation) was concerned with judicial review. I also note that neither the Privy Council nor counsel appearing therein thought judicial review proceedings were inapt in Spruce v. The University of Hong Kong [1993] 2 HKLR65.
Is the Decision of the Appeals Committee Amenable to Judicial Review?
16. The respondent's second argument is that, even if Lingnan is a public authority, not all of its functions is amenable to judicial review: R v. Jockey Club, exp RAM Racecourses [1993] 2 All ER 225, 246; R v. Disciplinary Committee of the Jockey Club, exp Massingberd-Mundy [1993] 2 All ER 207, 220; Leech v. Deputy governor of Parkhurst Prison [1988] AC 533, 583. Whether it is so amenable depends on the nature of the decision: R v. Panel on Take-overs and Mergers, exp Datafin plc [1987] 1 QB 815, 838; the Massingberd-Mundy decision at p. 219; Hong Kong and China Gas Co Ltd v. Director of Lands [1997] 3 HKC 520, 526.
17. The respondent submitted that a judicially reviewable decision must contain a "public element" which is "governmental" in nature: R v. Disciplinary Committee of the Jockey Club, exp Aga Khan [1993] 1 WLR 909, 931. The decision made by the Appeals Committee is related to student disciplinary matters and government has never been involved in these matters. Therefore, there is no "public element" in this decision.
18. While it may be true that government has not been involved as such, as will be set out below, it is the respondent's case that disciplinary matter in educational institutions is unique as it involves an element of "upbringing and supervision" of students. The provision of education is a type of public function of government. I therefore do not agree that there is no "public element" in the Appeals Committee's decision.
19. The respondent further argues that disciplinary proceedings are generally "internal" and "domestic" in nature, and are founded upon contractual and consensual submission to the same by the students: R v. British Broadcasting Corp, exp Lavelle [1983] 1 WLR 23, 31; the Massingberd-Mundy decision; R v. Lord Chancellor's Department, exp Nangle [1991] ICR 743, 756; Wong v. Governing Council of the University of Toronto (1992) 79 DLR (4th) 652, 657-8.
20. Without the need to go into the details, previous jurisprudence shows that even decisions to dismiss or discipline employees of public bodies may not necessarily be private law matters (as the respondent argued): see, for example, de Smith Woolf & Jowell, para. 3-055 to 3-066 (pp. 186-91) and Wade & Forsyth, pp. 657-59. The legal position with regard to disciplinary proceedings is summed up in de Smith Woolf & Jowell as follows:-
"... If what is in issue is a code of discipline set up by statute ... then this provides the statutory underpinning and it can also result in the issue having implications for others apart from those who are the immediate parties to a contract of employment, so that the issue is treated as one of public law: (para. 3-062);
"Where the dispute is as to some decision of a disciplinary or other body established ... by statute in which the employer or employee is entitled or required to refer disputes affecting their relationship, the issues are likely to be one of public law. This is because the supervision of inferior tribunals including disciplinary bodies which are of a public, as opposed to a private or domestic nature, have always been appropriate subjects for public law proceedings ... " (para. 3-064);
"Where the disciplinary procedures are of a purely private or domestic nature judicial review will not be available, ... It may still be necessary for the requirements of procedural propriety to be fulfilled. However, the remedy will be one in private law and not judicial review" (para. 3-066).
21. If one adopts the distinction set out in de Smith Woolf & Jowell above (which the respondent asked this court to adopt), the net result is a disciplinary body set up by statute will be subject to judicial review whereas one set up, for example, by contractual arrangements, will not.
22. Mr Wong contends that according to s. 23(2) of Cap. 1165, statutes made by the council of Lingnan are not subsidiary legislation. S. 23(1)(e) of Cap. 1165 empowers the council to make statutes providing for the regulation of the conduct and discipline of students. "Statutes" in s. 23 of Cap. 1165 means "the statutes of [Lingnan] made by the council under s. 23: see s. 2 thereof, and does not bear the ordinary meaning of that word. On the other hand, Mr Pun submitted that the Appeals Committee was exercising a quasi-judicial power when re-hearing Dr Lee's complaint and should therefore be subject to judicial review.
23. In view of the authorities, a distinction has to be made between a disciplinary body set up by statute and one set up by private consensual arrangements. I find that the Appeals Committee belongs to the latter type. This application should therefore be dismissed on this ground alone.
24. Having come to this conclusion, I shall nevertheless proceed to consider the other issues raised by the parties (below) if it should turn out the Appeals Committee's decision is judicially reviewable within the public law domain.
Have the Rules of Natural Justice Been Breached?
25. Before examining the individual issues under this heading, I agree with the following general propositions put forward by Mr Wong.
26. The rules of natural justice are flexible:-
"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expressed the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates": Lloyd v. McMahon [1987] AC 625,702;
"The concept of fairness is itself flexible and should not be subject to the court laying down rules or steps which have to be followed. The question in each case is whether the commission has adopted a procedure so unfair that no reasonable commission or group would have adopted it, so that it can be said to have acted with manifest unfairness. Provided each party has its mind brought to bear on the relevant issues it is not in my judgment for the court to lay down rules as to how each group should act in any particular inquiry": R v. Monopolies Commission, exp Brown plc [1987] 1 WLR 1235, 1242 per MacPherson J.
27. In the context of disciplinary matters relating to students, the courts have found it inappropriate to apply the rules of natural justice too strictly:-
"The courts have in general held that academic disciplinary proceedings require the observance of the principles of natural justice, but equally they have refused to apply unduly strict standards, provided that the proceedings are substantially fair": Wade, pp. 537-38;
"To 'overjudicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair. It would, in my view, be quite fallacious to suppose that at an inquiry of this kind the only fair way of ascertaining matters of fact and expert opinion is by the oral testimony of witnesses who are subjected to cross-examination on behalf of parties who disagree with what they have said. Such procedure is peculiar to litigation conducted in courts that follow the common law system of procedure, it plays no part in the procedure of courts of justice under legal systems based upon the civil law ... So refusal by an inspector to allow a party to cross-examine orally at a local inquiry a person who has made statements of facts or has expressed expert opinions is not unfair per se": Bushell v. Environment Secretary [1981] AC 75, 97 per Lord Diplock.
28. The respondent further argued that disciplinary matter in educational institutions is unique and the element of "upbringing and supervision of a student" is a factor to be taken into account in applying any rules of natural justice:-
"The context of educational societies involves a special factor ... namely ... the society is charged with the upbringing and supervision of the pupil under tuition, be the society a university or college, or a school ...
On the other hand, there is a wide range of circumstances in which the body or individual is concerned to impose penalties by way of domestic discipline. In these circumstances it seems to me that the body or individual is not acting in a quasi-judicial capacity at all but in a magisterial capacity, i.e. in the performance of the rights and duties vested in the society as to the upbringing and supervision of the members of the society ... ": Glynn v. Keele University [1971] 1 WLR 487, 494-95.
29. The Appeals Committee was an informal disciplinary body, comprising mainly the academic staff of Lingnan. Its chairman was Mee-kau Nyaw (Vice-President of Lingnan) and its members were:-
(1) Professor TS Chan (Lingnan's Academic Dean);
(2) Professor Joseph Lau (Lingnan's Academic Dean);
(3) Ms Moureen Tang (teaching staff, Lingnan's Department of Management);
(4) Siu Wing-yip (student observer nominated by Lingnan's Students' Union) (he was present at the re-hearing until the Committee's deliberation of the appeal).
Also present at the re-hearing was the Committee's secretary, Mrs Monica Tsang.
(a) Procedural Improprieties
It is undisputed that:-
(a) no document resembling a "charge sheet" was supplied to the applicant before the re-hearing;
(b) the applicant's request for legal representation at the re-hearing was refused;
(c) the applicant's presence at the re-hearing (other than when he was interviewed) was denied.
(a)(1) The Lack of a "Charge Sheet"
30. I disagree with Mr Pun's argument that the applicant must be supplied with a document containing a concise statement of the charge against him (something like a charge sheet in criminal proceedings). Dr Lee's complaint related to a relatively simple allegation that the applicant was impolite and intimidating.
31. Further, the applicant must have been well aware of the nature of the complaint by the time when the re-hearing commenced on 19 June 2000:-
(1) he was informed of the complaint on 6 January 2000 by Ms. Nancy Yu: see particularly para. 16 of the Form 86A herein filed on 17 May 2000 ;
(2) there was a hearing before the SDC in February 2000;
(3) on about 28 March 2000 he was provided with the Notes of Minutes of the SDC hearing;
(4) on about 26 April 2000, he was provided with the "key papers" which included Dr Lee's report and the 4 witness statements;
(5) he was able to give instructions to his legal representatives regarding the nature of Dr Lee's complaint to enable them to file the Form 86A herein on 17 May 2000.
32. For the above reasons, there is no substance in this argument.
(a)(2) Supply of Documents
33. According to the respondent's evidence, the documents used by the Appeals Committee were provided to the applicant in April 2000: see para. 31 of Professor Nyaw's affirmation. Despite Mr Pun's submission that one document (see below) has not been provided to the applicant, there is no evidence to rebut this part of the respondent's case. However, the applicant complained that he was not told that those documents (especially the witness statements provided to him in April 2000) would be used by the Committee. He argued (through counsel) that they were only provided to him for the purpose of writing the apology letter.
34. There is no substance in this argument. Para. 21 of the Form 86A herein (filed in May 2000) states:-
"... Miss Yu also sent a list of 'key papers' for the consideration of the Committee. The 'key papers' were about 100 pages but had never been disclosed to the Applicant until 25th April 2000" (emphasis supplied).
It is obvious that by then, both the applicant and his legal advisers were aware of the relevance of the documents provided to him in April 2000 to the re-hearing by the Appeals Committee (which in May 2000 had yet to be heard).
35. Mr Pun complains that the President's letter dated 16 March 2000 in which the President refused his application for an appeal (as stated above, this was later reversed) was included in the appeal bundle without the applicant's knowledge. Even if this was true, I do not consider this document would materially affect the applicant's ability to know the case brought against him. As to whether placing this document before the Appeals Committee should create an appearance of bias will be dealt with below.
(a)(3) Refusal of Legal Representation
36. The applicant submits that he was only a 19-year old student whereas Dr Lee is sophisticated and experienced. For this reason, the Appeals Committee ought (quite apart from the general right to legal representation) have allowed him to be legally represented at the re-hearing.
37. On the other hand, the respondent argues that the Appeals Committee was an informal tribunal constituted mainly by Lingnan's academic staff. The issue which it needed to determine was substantially (if not entirely) a factual one. Although in theory the applicant was liable to be expelled under the Regulations, in the context of the complaint against him, a severe penalty is unlikely.
38. Whether a tribunal allows legal representation is ultimately a matter of discretion: see, for example, de Smith Woolf & Jowell, para. 9-030 and 9-031. In the circumstances of this case, I do not consider the Appeals Committee has erred in exercising the discretion to refuse such representation at the re-hearing.
(a)(4) Refusal of Cross-examination
39. Mr Pun lays particular emphasis on the following passages in de Smith Woolf and Jowell:-
"Refusal to permit cross-examination of witnesses may amount to procedural unfairness, especially if a witness has testified orally and a party requests leave to confront and cross-examine him. The fact that the proceedings may be inquisitorial and informal is inconclusive. As with the question of entitlement to legal representation, the matter is one for the discretion of the tribunal. However, where a 'judicialised' procedure has been adopted and witnesses are called to give evidence, then the courts will be very ready in the absence of strong reasons to the contrary to find unfairness where a tribunal declines to allow those witnesses to be tested in cross-examination. ... " (de Smith Woolf & Jowell (1999) , para. 8-053 (same as de Smith Woolf & Jowell (2000), para. 9-035)).
The same paragraph continues as follows:-
"... The true question in every case is whether the absence of cross-examination renders the decision unfair in all the circumstances. If no useful purpose is likely to be served by allowing cross-examination then the courts will be slow to disturb that decision".
40. The Appeals Committee was an informal tribunal. The procedure adopted was inquisitorial. All the witnesses were questioned by members of the Committee. The matters which need to be investigated by the Committee were largely factual and straight-forward. There is no suggestion that any of the witnesses who testified against the applicant deliberately lied (although the applicant's case and Dr Lee's differed as to whether the applicant was impolite and intimidating and whether the applicant was talking to himself or directing his remarks towards Dr Lee).
41. In these circumstances, I agree with the respondent's argument that no unfairness was caused by the refusal to cross-examine.
(a)(5) Failure to Give Reasons
42. The Appeals Committee found that the applicant's behaviour 8 December 1999 fell foul of Regulation 26 of the Regulations which reads:-
"26. Disciplinary Action
26.1 The Student Disciplinary Committee may, as a result of its inquiry or investigation, take disciplinary action against a student who violates any rule or regulation of the University or commits any misconduct, such as:
(a) ...
any conduct which is detrimental to the reputation and well-being of the University ... " (emphasis supplied).
43. I consider that adequate reasons have been given for the Appeals Committee's decision. In the letter dated 26 June 2000 from the Committee's secretary to the applicant, the names of the persons who testified were given and the Committee informed the applicant that its finding was made after careful consideration of the evidence given. As stated above, the matters which the Committee needed to investigate were largely factual in nature, namely, the credibility and/or reliability of the witnesses.
44. Further to the said letter, the Notes of the meetings of the Appeals Committee also set out in detail the purpose of the meeting, a summary of the testimony of the witnesses interviewed and (at para. 16 thereof) the reasons for its finding. The finding itself was also set out in detail in the Notes (see the passages in the Notes set out under the heading "Events Since the Complaint" above).
45. The respondent referred to a number of authorities in support of its argument that the Committee has not failed to give reasons. I do not propose to recite them except to say that I agree with the passages quoted:-
(a) Bolton MDC v. Secretary for Environment [1995] 3 PLR 37, 42;
(b) R v. Secretary of State for Education, exp G [1995] ELR 58, 67G;
(c) R v. General Medical Council, exp St Georges University, unrep., 30 November 1994;
(d) Tong Pon Wah v. Hong Kong Society of Accountants [1998] 3 HKC 82, 94B-C, 97I-98 and 99G-I.
(b) Appearance of Bias
46. This complaint is based on:-
(a) the inclusion of a letter dated 16 March 2000 from Lingnan's President to the applicant in the documents placed before the Appeals Committee;
(b) members of the Appeals Committee were appointed by Lingnan's President. They were his subordinate staff and there was a close relationship between them.
47. As regards point (a) above, the part of the letter relied upon reads:-
"... I wish to inform you that my decision is not to refer your case to the Appeals Committee ... It is in my view that [the SDC] has conducted a fair hearing of all parties concerned. There was also sufficient evidence provided by impartial witnesses to substantiate the case against you. I have not found any improper procedures in the way [the SDC] conducted its business. The resolution of [the SDC] ... is also in my view reasonable. Based on the above, it is unlikely that the Appeals Committee will come up with a different ruling".
The letter went on to refuse the applicant's request for an appeal (which, as stated above, was reversed after legal advice was sought).
48. I agree with the respondent regarding this complaint:-
(1) the circumstances (including the views (one refusing the request for an appeal and the latter one acceding to such request) expressed by the President) were well publicised and well known to Lingnan's staff and students;
(2) according to Professor Nyaw's affirmation, because of the history of the matter, members of the Committee were particularly aware of its task to consider the matter afresh, and not to be influenced by the SDC's decision or the letter of 16 March 2000. It resulted in a complete re-hearing of Dr Lee's complaint;
(3) staff members of the Committee consisted of senior staff of Lingnan and leading personalities from the local academia;
(4) the appointment of the Committee members was confirmed by the Senate.
49. No actual bias has been alleged; the applicant only complains of a real risk (or danger) of bias. I find the complaint has not been made out. Further, the allegation against Ms Yu that she had determined the matter (as evidenced by her letter dated 12 January 2000) is invalid. Looked at properly, her letter only set out the history leading to the failure of conciliation and the need to appoint the SDC.
Illegality
50. This part of the applicant's argument is advanced assuming (as I have found above) that there was no procedural impropriety, or appearance of bias, on the part of the Appeals Committee.
(a) Was the Finding Ultra Vires the Rules?
51. The applicant argues that there was no or insufficient evidence to support the Committee's finding that the applicant has contravened Regulation 26.1.
52. There is (correctly) no complaint that the Committee's finding that the applicant behaved impolitely was unreasonable in the Wednesbury sense. In view of the materials before the Committee (see the summary under the heading "The Background Facts"), such a finding was obviously open to it. In fact, given the line of defence put forward by the applicant (that he was only talking to himself), I find that his "explanation" to be incredible. The words he uttered such as: "... you, till you die, will not admit that you are wrong" could only be referring to another person (and not himself). The circumstances in which they were uttered show that that other person must have been Dr Lee.
53. At the end of the hearing on 31 January 2001, the parties agreed to the deletion of para. 52 and the last sentence of para. 53 of Professor Nyaw's affirmation. This is on the understanding that it would be open to the Court to determine whether there was misconduct on the applicant's part (without necessarily limiting its consideration to Regulation 26.1(i)).
54. The applicant's argument is that impoliteness or rudeness is not a type of misconduct within the meaning of Regulation 26.1. The text of that regulation has been set out under the sub-heading "(a)(4) Failure to Give Reasons" and will not be repeated. Examples of misconduct have been given in para. (a) to (j) of Regulation 26.1 because the words "such as" appear before these paragraphs. There is no genus to the examples given and so the Ejusdem generis rule does not apply to the word "misconduct". Regulation 26.1 is part of (as the name of the Regulations suggests) the regulations governing undergraduate studies in a university. Bearing this background in mind, the ordinary meaning of this word should include the impoliteness of students to other members (be it staff or student) of Lingnan.
55. Insofar as the applicant should argue that the Appeals Committee did not make a finding that there was misconduct, I consider the argument to be plainly bad.
(b) Was the Finding Inconsistent with the Bill of Rights Ordinance and/or the Basic Law?
56. This part of the applicant's argument is so devoid of merits that it needs only be dealt with briefly. Even Mr Pun does not argue that disciplinary rules governing, and disciplinary actions taken against, a person's impoliteness can be validly enacted (or taken) if that person has no justifiable cause (for example, his impolite behaviour is not related to a justifiable complaint). He argues that if, however, that person has a justifiable complaint, he can act in an impolite manner without being held answerable under any rules.
57. The proposition is startling because civilised behaviour is one of the matters which any modern society is aiming at. This is especially so in educational bodies such as universities. To suggest that somehow under certain situations people can legitimately abuse each other is an abhorrent thought. For example, law enforcement personnel can treat citizens with the utmost disrespect and rudeness if they have good grounds to exercise their statutory powers to stop, search and question, without being exposed to disciplinary actions.
58. Besides, rules and actions against impoliteness (being rules and actions relating to a person's behaviour) and therefore not related to any encroachment on the contents of that person's "speech", cannot be said to have breached any provisions in the International Covenant on Civil and Political Rights, the Basic Law or the Bill of Rights Ordinance, Cap. 383 regarding "freedom of speech".
Discretion
59. When leave was given for this application on 26 October 2000, the Court specifically enquired with Mr Pun whether the mere issuance of a letter of reprimand would justify the time and expenses of an application for judicial review. His response was that, despite the Appeals Committee's decision, the reprimand would go into the applicant's academic records and might therefore affect his career whenever enquiries are made (whether by other academic institutions or by future employers). Mr Pun informed the Court at the end of the ex parte hearing on 26 October 2000 that the applicant's legal representative would seek clarification from Lingnan on that matter.
60. In the applicant's third affirmation dated 15 January 2001 he said:-
"I verily believe that the reprimand imposed on me by [Lingnan] will affect my application for admission in [Lingnan] for Master of Cultural Study ...
I also believe that the reprimand imposed on me ... would be revealed in reference letters and testimonial given by [Lingnan] ... Therefore, such reprimand may affect my applications for further studies in Hong Kong or overseas".
61. The applicant's said statements are surprising in view of the Appeals Committee's decision in June 2000:-
"... Having regard to the facts referred to in (17) above, the Appeals Committee further decided that the reprimand should not be entered into the transcript of his academic records".
62. Not only was there no attempt by his legal representatives to clarify the position, the applicant's said assertions were placed before the Court and relied upon by counsel at the hearing of this application.
63. Professor Nyaw said this in the second affirmation dated 22 January 2001:-
"... the reprimand imposed ... which is not entered into the transcript of the Applicant's academic records, will not be revealed to the Department of Cultural Studies or any other academic departments. ... the academic departments enjoy absolute academic autonomy. ... Such reprimand therefore cannot affect his intended application for admission ...
... such reprimand would not be revealed in reference letters and testimonial given by [Lingnan]".
64. Despite the above, the applicant did not desist in his stance that his future would be affected by the reprimand. In his fourth affirmation dated 23 January 2001, he said:-
"... everybody in [Lingnan], including those in the Department of Cultural Studies, knows the reprimand imposed by [Lingnan] ... I strongly believe that the reprimand will affect my chance of admission ...
I have approached my intended referee who is a lecturer in [Lingnan] for my application for admission ... He told me clearly that as my referee, if he is being asked, by the foreign university I applied for, about my conduct in [Lingnan], he is bound to reveal the reprimand imposed on me ... ".
65. If judicial time and resources were unlimited, it may not be important to consider whether or not the decision allegedly liable to judicial review has material consequence. Judicial time and resource are unfortunately not unlimited and other litigants are made to wait while cases involving only "technical" breaches with no real injustice are being litigated. This ought to be deterred. The Court retains a discretion not to grant any remedy if no injustice or prejudice was caused by such a decision: see, for example:-
(a) R v. Chief Constable of the Thames Valley, exp Cotton [1990] IRLR 344;
(b) Malloch v. Aberdeen Corporation [1971] 1 WLR 1578, 1595;
(c) The Gylnn decision at pp. 496G-97A;
(d) R v. Aston University Senate, exp Roffey [1969] 2 QB 538, 554E-G.
66. First, on the materials available, it is quite possible that the Appeals Committee would have reached the same conclusion even if there had not been any impropriety. Further, the applicant's case regarding the alleged consequence of the reprimand bears the insignia of an exaggerated case; parts of it are factually incorrect.
Conclusion
67. By reason of the matters aforesaid, even if the Appeals Committee's decision were amenable to judicial review, I would still have refused this application.
Other Matters
68. It is regrettable that despite counsel's indication on 26 October 2000 that the matter would be looked into, no action was apparently taken by the applicant's legal advisers to find out the true position from Lingnan about whether the reprimand would be further disclosed by Lingnan in future.
69. It is even more regrettable that as a result of this failure, public funds were spent when legal aid was granted to the applicant in continuing this application. If counsel has not informed the Director of Legal Aid of the Court's said enquiries on 26 October 2000, then counsel has failed to advise the Director of matters relevant to s. 10(3), especially s. 10(3)(a) and/or (c) of the Legal Aid Ordinance, Cap. 91. If counsel has done so but the Director has not taken the benefit of s. 10(3) of Cap. 91 then the Director has failed in his statutory duty.
70. In the course of his submissions in open court, Mr Pun has stated that Dr Lee has been impolite to the applicant. He persisted in this submission despite Mr Wong's objection. The alleged impolite behaviour was taken from Dr Lee's statement that he left the scene after the verbal exchange with the applicant and did not return until much later on that day because he was emotionally upset. As a result of this submission, a corresponding report appeared in the media the following day.
71. There is no evidential basis to suggest that Dr Lee has acted impolitely. When counsel make allegations in court against third parties, they do so with immunity afforded by the law. Counsel are expected to act responsibly because the individuals under attack would have no redress in law and often no chance to rebut such allegations. It is regrettable that Mr Pun has not exhibited the high standard which are expected of counsel when he persisted in making the allegation against Dr Lee despite the lack of evidence to such effect.
Costs
72. There will be a costs order nisi pursuant to RHC Ord 42 r 5B(6) that costs of this application be paid by the applicant to the respondent to be taxed if not agreed. The applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.
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(Andrew Chung) |
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Judge of the Court of First Instance
High Court |
Representation:
Mr Hectar Pun, instructed by Messrs Fok & Johnson, assigned by DLA, for the Applicant
Mr Wong Yan Lung, instructed by Messrs Wilkinson & Grist, for the Respondent
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