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

CACV 270/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2015

(ON APPEAL FROM HCAL NO 47 OF 2015)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.By our judgment handed down on 12 October 2016, we dismissed the appeal of the Applicant in respect of the refusal of leave to her to apply for judicial review in respect of certain decisions of the examination panel, the Dean of the Chinese Business School and the Vice-Chancellor of the Chinese University. It should be noted that in essence our decision was the refusal of leave to amend the Form 86, without such amendment the application for judicial review must fail. Our refusal of leave to amend was an exercise of discretion by this Court.

2.Notwithstanding the lack of practical significance of the proposed challenge to the Applicant for the reasons explained in our judgment, the Applicant still sought leave to amend in order to raise a point of general importance for the determination by the Court based on the approach laid down in Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465.

3.In our judgment, we concluded on the facts of the present case no point of general public importance arose for determination and the purported reliance on Article 137 of the Basic Law was misconceived.

4.By a notice of motion of 1 November 2016, the Applicant seeks leave to appeal against our determination to the Court of Final Appeal.  Pursuant to the directions of the court, written submissions on the motion were filed and we considered it is appropriate to determine it on papers.

5.Two questions, said to be questions of great general or public importance, are set out in the Motion,

“ 1. Whether a tertiary education institution breached the implied term or obligation of mutual trust and confidence between it and its employed staff when it changed the grades she has awarded to the students, not on allegedly procedural grounds, but against the academic judgment of that staff without first seeking her consent and/or consulting her.

2. Whether Article 137 of the Basic Law is engaged when an academic staff of a tertiary education institution exercises her academic judgment in assigning grades to her students.”

6.The first question was not germane to our exercise of discretion.  Breach of duty of mutual trust and confidence only provides a cause of action in private law dispute.  It could not afford a ground for an application for judicial review.  Thus, at the hearing of the appeal, the focus was on the argument relating to Article 137 of the Basic Law.  Irrespective of the answer to this question, it cannot give rise to a point for giving leave to amend the Form 86 to facilitate a public law challenge.

7.As regards the second question, with respect Ms Eu SC failed to consider the matter in the context of the present case. Article 137(1) reads,

“ Educational institutions of all kinds may retain their autonomy and enjoy academic freedom. They may continue to recruit staff and use teaching materials from outside the Hong Kong Special Administrative Region. Schools run by religious organizations may continue to provide religious education, including course in religion.”

8.We explained in our judgment that this article is concerned with the institutional academic freedom of educational institutions though such freedom also embraced protection of the faculty of academics to pursue the search for knowledge without fear of external sanction.

9.Ms Eu submitted that this article also protects an academic staff against intervention arising from the internal relationship between the university and its academic staff.

10.The interference the Applicant alluded to is the overturning of the grades awarded by her to some students who pursued grade appeals in accordance with the rules of the University.

11.As explained in our judgment, the issues between the Applicant and the examination panel were about procedural fairness in the assessment process.  It is not a matter which goes to academic judgment.

12.On any view, the argument that there is a breach of Article 137 in the circumstances of the present case is, with respect, far-fetched.

13.For the above reasons, we do not regard the intended appeal as reasonably arguable and we refuse to grant leave.

14.We also order the Applicant to pay the costs of the Respondent in the Motion.  Having considered the statement of costs of the Respondent, we fix the costs at $295,653 (of which $250,000 is counsel fees, which we regard as the proportionate level of fees on a party to party taxation in view of the complexity of the present application).

Ms Audrey Eu SC and Mr Jonathan Lee, instructed by Wong, Hui & Co, for the applicant

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