Yu Hung Hsua Julie v. The Chinese University of Hong Kong

HCAL 47/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 47 OF 2015

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D E C I S I O N

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INTRODUCTION

1.This is an application for leave to apply for judicial review.  The applicant is an associate professor of the putative respondent, the Chinese University of Hong Kong (“CU”).

2.The decisions (or purported decisions, as the case may be) against which this application is directed are:

(a) the decision of the examination panel of the Graduate Division of CU (“the exam panel”), which was communicated to the applicant on 16 December 2014 (“the Dec 2014 decision”);

(b) the decision of the exam panel, which was communicated to the applicant on 13 January 2015 (“the Jan 2015 decision”);

(c) the decision (or purported decision) dated 14 January 2015 of the Dean of CU Business School (“the Dean” and “the Dean’s decision”);

(d) the decision (or purported decision) dated 2 February 2015 of the Vice-Chancellor of CU (“the VC” and “the VC’s decision”).

The Dec 2014 decision and the Jan 2015 decision are collectively called “the EP decisions” below.  The EP decisions, the Dean’s decision and the VC’s decision are collectively called “the subject decisions” below.

3.The relief sought by the Form 86 includes:

(1) Certiorari to quash the EP decisions;

(2) declaration that the EP decisions are null and void and of no legal effect;

(3) Mandamus to oblige the exam panel to reconsider the students’ appeal (summarized in para 7 below);

(4) Mandamus to oblige the Dean and/or the VC to intervene.

BACKGROUND

4.The applicant has been one of CU’s teaching staff since 1988 (for a period of about 26 years up to the commencement of this application (in April 2015)).  She has been the course instructor of a core subject of the Master of Business Administration (Weekend) Programme (“the MBA programme”).

5.As its name implies (“MKTG5011W Marketing Management”), the said core subject was devoted to the study of the management of marketing (and other related topics).

6.The incidents giving rise to this application were concerned with the grading of some of the students who attended the said core subject during the academic year of 2013 to 2014.

7.In short, partly as a result of the negative marks given by the applicant to some of the said students, their academic results did not fulfill the minimum requirements of the MBA programme.  Four of those students appealed to the exam panel, which later re-graded their results (and that of two other students).

8.Communications connected with those four students’ appeals, and the EP decisions, began in July 2014.  The applicant lodged a formal complaint against the exam panel in September 2014.  She formally complained to the Dean in December 2014, and to the VC in January 2015.  In short, the Dean and the VC declined to intervene.

9.Consequent upon such re-grading, the MBA’s academic requirements have been met, and those four students (among the others) were conferred their MBA degree.  The related graduation ceremony was held on 19 November 2015 (several days before this hearing).  The Transcripts of Academic Record showing their grades have been issued to them in October or November 2015 (as the case may be).

THIS APPLICATION

10.The relevant legal principle is trite and undisputed: the test for granting (or refusing) leave is whether the application is reasonably arguable with realistic prospects of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, para 15.

11.In this application, the applicant submits that the following matters are reasonably arguable:

(a) the subject decisions were decisions falling within the public law domain, and hence amenable to judicial review;

(b) the Dec 2014 decision (a reasoned decision) was illogical, irrational, inconsistent and/or arbitrary;

(c)  further, the EP decisions were made without regard to the proper procedure (remitting the cases back to the applicant for grading);

(d) the subject decisions were an infringement of the applicant’s academic judgment as an educator.

12.CU opposes this application on various grounds. Without in any way accepting the matters set out in para 11 above, the following grounds are relied upon in particular as grounds for refusing leave:

(1) interested parties, namely, the affected students, have not been joined (this is related to sub-para (2) below);

(2) the matter has been overtaken by events, with the result the question now becomes academic (this is related to the complaint of delay);

(3) there has been undue delay on the applicant’s part, which has been aggravated by the applicant’s knowledge of the need for urgency, and her lack of valid reason for not expediting this application;

(4) the part of this application concerning the Dean’s decision and the VC’s decision is entirely without legal basis.

These grounds will be discussed below.

(a)   Interested parties

13.Here CU submits that, if this judicial review were to proceed further, and ends in the applicant’s favour, the MBA degrees conferred to those four students would have to be “taken back” because their original grades would prevail again.  They are thus parties whose interests may be affected by the outcome of this judicial review application.

14.The applicant refutes the above submission by arguing she does not seek the relief contended for by CU.  For the reasons given below, I agree with CU that the argument has no substance.

15.It must be noted that the gist of the applicant’s complaint in this application against the subject decisions is that they were illogical, irrational, inconsistent and/or arbitrary (see para 11 (especially para 11(b)) above).  In this connection, I note the applicant has in her affirmation been critical of what she perceived as a relatively lengthy trend of “grade inflation” which favours sub-standard students (with undesirable social consequences).

16.That being the essence of her case, it does not lie in her mouth to argue that CU can still somehow confer the MBA degrees even if the grades given by the applicant to those four students did not fulfill the degree’s minimum requirements (except perhaps by some illogical, irrational, inconsistent and/or arbitrary decision on CU’s part).

(b)   Academic question

17.In view of the matters mentioned in para 9 above, CU seeks a refusal of this application by reason the relevant state of affairs (that is, grading of those four students’ academic results) no longer exists.

18.The applicant refutes the above submission as follows:

(a) several “remedial” options are open to CU in the event the relief sought in this application is in fact granted;

(b) although those four students may well have graduated, the issues raised in this application may impact on CU students in future;

(c)  in any event, the court retains a discretion to proceed with judicial review even though the question is academic.

I agree with CU that the above arguments have no substance.

19.In relation to para 18(a) above, the applicant’s contention is unmeritorious for the following reasons:

(1) the suggestion that CU can “exempt” a core subject (especially where there has been a failed academic result) lacks logic, and seems to go against CU’s general regulations governing postgraduate studies (such as reg 7.3), its policy on course and unit exemptions for postgraduate students (such as para (2) and (3)) and/or its code of practice (such as para 5.5);

(2) the suggestion that a student’s grades can still be re-graded (or “re-instated”) even after his/her graduation is similarly illogical;

(3) the suggestion that CU can revoke the degrees already conferred cannot find support from the language of s 15(e), The Chinese University of Hong Kong Ordinance (Cap 1109) (read together with Schedule 1, Statute 26, para 14).  The suggestion that CU retains a general power to do so in rare and exceptional cases (such as a degree conferred entirely by mistake) is irrelevant because the MBA degrees were conferred based on the grades given by the exam panel;

(4) the suggestion that CU may impose conditions (such as requiring students who have already graduated to attend a course) is not logical, nor is it practicable.

20.In relation to para 18(b) above, the contention suffers from the following defects:

(a) the suggestion that there may be other cases in future is not supported by evidence;

(b) on the contrary, the affirmation evidence (of both the applicant and CU) tends to show that the case of those four students (or similar cases) were hitherto not encountered;

(c)  further, the applicant has not specified the meaning of “other future cases”; for example, it is unknown whether the phrase is intended to refer to other cases involving “academic results (partly) tied to class attendance” or “the grading/re-grading of academic results by the instructor” or “the re-grading of academic results by the exam panel”;

(d) in any event, the applicant’s challenge to the said decisions is fact-sensitive; there is no evidence that similar re-grading of academic results (for students’ absence from class) has been, or will be, common in CU.

21.In relation to para 18(c) above, the discretion to proceed even though the dispute has been “overtaken” by events should be limited to rare and exceptional cases where a good reason to do so exists: R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450, 457; Secretary for Security v Sakthevel Prabakar [2003] 6 HKCFAR 397, para 4; Rank Profit Industries Ltd v Director of Lands HCAL 126/2005 (2 March 2007), p 40; Po Fun Chan, para 18.  This application does not fall within that category (in light of the foregoing paragraphs).

(c)   Delay

22.This application was commenced on 9 April 2015. The applicant became aware by 19 December 2014 that the Dec 2014 decision was regarded by CU to be “final” (para 2(a) above).  I therefore agree with CU that this application was commenced beyond the time period prescribed by RHC Ord 53 r 4(1) (Cap 4A) (see also s 21K(6)(a), High Court Ordinance (Cap 4)).

23.The delay has also been made worse by the applicant’s actual knowledge for urgency (the graduation of the affected students was known to take place soon).  Indications of such knowledge can be found in the applicant’s own messages:

(1) e-mail dated 18 December 2014;

(2) e-mail dated 22 December 2014;

(3) e-mail dated 30 January 2015.

24.Finally, it is noted the November 2015 hearing was preferred by the applicant (over a June 2015 hearing).

(d)   Dean’s decision and VC’s decision

25.In addition to the above, there is simply no legal basis for contending that the Dean or the VC has the power (or was under a duty) to interfere with the EP decisions (it is not the applicant’s case either CU’s council or its senate was obliged to do so).

26.Even if leave should somehow be granted in relation to the EP decisions, leave should be refused in relation to the Dean’s decision and the VC’s decision.

CONCLUSION

27.Leave to apply for judicial review is refused.

OTHER MATTERS

28.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER

29.The parties agreed costs should follow the event if this application is refused.  There will accordingly be a costs order that the costs of this application be paid by the applicant to CU to be taxed if not agreed, with certificate for two counsels’ court attendance on 24 November 2015.

Mr Russell Coleman SC leading Mr Val Chow, instructed by Wong, Hui & Co, for the applicant

Mr Warren Chan SC leading Ms Patricia Lam, instructed by Fred Kan & Co, for the putative respondent