In Re John Ho Hung Chiu and Another

HCMP000999/1995

MP 999 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: the Hon Mr Justice Findlay, in Court

Dates of hearing: 13, 16, 17, 18 and 19 October 1995

Date of handing down of judgment: 24 October 1995

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JUDGMENT

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Background

1. On 14 April 1992, Bokhary, J., as he then was, in an action brought by the applicants in the proceedings before me, found that Dr T.H. Lam, a fellow member of the University of Hong Kong, had obtained two versions of questionnaire (called KH4d and KH4c), in which the applicants had copyright, "surreptitiously", had infringed the applicants' copyright and had misused the confidential "information" contained in them. He gave judgment in favour of the applicants for damages to be assessed. The full story is contained in Linda, Chih-ling Koo and Another v Lam Tai-hing [1992] 2 HKLR 314.

2. Dr Lam appealed against this decision. The appeal was heard over 12 days in May 1993. Judgment was given on 25 August 1993. The report is at [1994] 1 HKLR 329 under the name Lam Tai-hing v Linda Chih-ling Koo and Another.

The Reaction of the University

3. The University could not, of course, leave things there. Essentially, one of its senior members had been found by the High Court to be a plagiarist. The Vice-Chancellor of the University decided that an inquiry should be held into Dr Lam's conduct. The Registrar of the University wrote to Dr Lam on 1 September 1993 saying that the Vice-Chancellor was satisfied that the infringement of copyright and misuse of confidential information could reasonably have been the subject of a complaint against Dr Lam, and, that if such complaint were proved, it "might be, prima facie, good cause for the termination of your appointment." Under section 12(7) of the University of Hong Kong Ordinance (Cap. 1053), the Council of the University may terminate an appointment only "where after due inquiry into the facts there exists in the opinion of the Council good cause for such termination." The phrase "good cause" is defined in section 2(2) of the Ordinance as meaning, as far as relevant here, "such misconduct, whether in an official or private capacity, as renders the holder unfit to continue in office." This, the authorities say, means conduct that would reasonably be regarded as "disgraceful or dishonourable" by the person's professional colleagues of good repute and standing.

4. The Vice-Chancellor referred the matter to the Committee of Personnel Matters. The function of this Committee was to prepare a detailed report of its findings on the facts of the complaint, but not to make any recommendation on whether the teacher's appointment should be terminated. The Committee was to submit its report to the Vice-Chancellor. If the inquiry established facts which prove to the Vice-Chancellor's satisfaction that the allegation was demonstrably false, the teacher was to be informed accordingly, and no further action taken. Otherwise, the Vice-Chancellor must forward the report to the Senate for its advice on the findings of the inquiry. In the event, the Vice-Chancellor decided that the inquiry had established facts that proved to his satisfaction that the allegation was demonstrably false, so the matter proceeded no further.

These Proceedings

5. The Committee concluded its hearings on 26 July 1994, and thereafter deliberated. It completed its report on 16 January 1995, and submitted this to the Vice-Chancellor.

6. On 13 April 1995, the applicants commenced proceedings in this court to review the decision of the Committee to submit the report to the Vice-Chancellor. The relief sought was an order of certiorari to quash the decision, a declaration that in conducting the investigation the Committee did not act fairly towards the applicants in that -

• it did not afford them an opportunity to comment on the evidence of Dr Lam and the evidence of other witnesses; and
• that criticisms were made of them without being given the opportunity to comment on the evidence giving rise to these criticisms,

and an injunction restraining the University from further publishing the report.

7. The notice of application for leave to apply for judicial review (the notice) says -

"57. Although the Applicants were not parties to any lis before the Committee because it proceeded by way of an investigation and they did not appear to give viva voce evidence the Committee nonetheless had a duty to act fairly towards them by reason of the following facts and matters:

i. The Vice-Chancellor's reference to the Committee was premised on their complaint of plagiarism.

ii. The Applicants had already adduced evidence sufficient to persuade the High Court and Court of Appeal that Dr Lam had been guilty of plagiarism.

iii. To the extent that the Committee was willing to receive evidence which had not been before the High Court and the Court of Appeal and which tended to exculpate Dr Lam from the charge of plagiarism, there was a chance that the findings of the Committee would be adverse to the interests of the Applicants in maintaining the integrity of those judgements.

iv. In the event of the Committee making findings that were favourable to Dr Lam and which tended to exculpate him from any wrongdoing, the Vice-Chancellor was likely to make and publish a finding (as he in fact did) that the underlying complaint was "demonstrably false". Such a finding was a slur on the characters of the Applicants.

v. To the extent that the Committee was prepared to receive the evidence and opinions of epidemiologists which was critical of the Applicants' work and methodology, there was a chance that any findings based on such evidence and opinions would be critical of the Applicants and damaging to their reputations as cancer researchers.

vi. The Committee acknowledged that it had "a general obligation to observe the rules of natural justice" (see Paragraph 26 of Report) and had equipped itself with legal advisers (solicitors and counsel) to see that this obligation was discharged."

8. The notice alleges that the Committee failed to act fairly towards the applicants in that -

"i. It did not give them a fair opportunity to correct or contradict evidence which:

(a) was contrary to their interests in maintaining the integrity of the High Court and Court of Appeal judgements.

(b) was critical of them in that it suggested that they had produced inferior work which was not original.

ii. It made gratuitous criticisms of the Applicants regarding their perceived attitude towards the Inquiry without warning them that it was so minded to criticise them.

iii. It did not permit them to see or comment on "new evidence", i.e. evidence which had not been used in the High Court proceedings.

iv. It did not give the Applicants the opportunity which it said would be given to them, namely "a full opportunity for you to assist it and it is likely that you will be invited to adduce other documents that transpire to be particularly relevant to the investigation as the Inquiry progresses." [see paragraph 7 of letter from Secretary to Committee dated 16 May 1994]

(The areas of the Report where the Applicants would, if given

the opportunity, have wished to respond to the criticisms made of them and the evidence which tended to exculpate Dr Lam are identified in a Schedule attached to this Form 86A. The Schedule identifies each issue and sets out in, in outline form only, the response that would have been made had the opportunity to comment been made available.)"

The Particular Complaints

9. The notice gives particulars of the instances in which it is alleged that the Committee criticised and censured the applicants and their research work. I will set out each complaint and the terms of the paragraphs of the report which contain the offending words. Later in this judgment, I will comment on each complaint.

Paragraphs 41(a), 54 and 55 of Report.

10. The Complaint

"That the Applicants should not have asserted that Dr Lam had "surreptitiously" obtained the questionnaire when the Court of Appeal had disagreed with the finding of Mr Justice Bokhary on this matter."

The Report

"41. The Committee gave careful consideration to these two submissions from Professor Ho and Dr Koo. At this stage we wish to make some comments on their evidence.

(a) Despite the rejection by the Court of Appeal of Mr. Justice Bokhary's finding that Dr. Lam obtained the questionnaire "surreptitiously", this finding is repeated and presented as if it had the approval of the Court of Appeal."

"54. When the matter came before the Court of Appeal, the judges were unanimous that there was no evidence whatsoever to prove that Dr. Lam had obtained the questionnaires in the way Dr. Koo had alleged and Mr. Justice Bokhary had believed. It is important to point out that we were reminded that an appellate court does not normally overrule the findings of fact of a lower court unless there is no evidence to support the finding (and as we have mentioned above, for the most part the court of Appeal was unwilling to overrule the High Court on other points even though it had reservations about the evidence). Even her own counsel, Mr. Daniel Fung, Q.C., did not try to sustain this finding concerning the manner in which the copies came into Dr. Lam's possession in the Court of Appeal as is clear from Mr. Justice Penlington's judgement (page 29).

55. Nor was any fresh evidence in this regard given to us by Dr. Koo and Professor Ho. Their evidence consisted in a reiteration of their allegations made originally to the court and the drawing to our notice of Mr. Justice Bokhary's findings (although as would have been apparent, the Court of Appeal had overruled him on this point). Of all the voluminous evidence that we examined, there was no evidence whatsoever that Dr. Lam obtained the questionnaires surreptitiously. The Committee is also unable to accept, for reasons we discuss below, Dr. Koo's categorical claim that only she had copies of KH4d."

Paragraphs 38 and 48

The Complaint

"That the Committee's access to relevant papers was frustrated by the Applicants who withheld their consent to the Committee having access to Court papers."

The Report

"37. We invited Dr Koo and Professor Ho to give us oral evidence and to answer various questions of which we gave them advance notice. However, after considerable discussion between them and their lawyers and the Committee's secretary and legal advisers, Dr Koo and Professor Ho declined our invitation. The Committee greatly regrets their decision as they were well placed to help the enquiry.

38. At this point we wish to state that the Committee's access to other relevant material was effectively frustrated by Dr. Koo and Professor Koo. The Committee had wished to have a copy of the parties list of documents filed in the High Court together with access to the relevant documents. Johnson Stokes and Masters who had the list and the documents were prepared to release them provided the parties to the litigation consented. Unfortunately Dr. Koo and Professor Koo refused their consent. Instead they offered to bring 150 files of documents with them to the Committee, but, as stated in the previous paragraph, they later decided not to appear before the Committee to assist it in its investigation.

48. Fifthly, we should state that our findings are based on a considerable amount of evidence that was presented to the High Court and the Court of Appeal, together with evidence not available to these bodies for it was either not presented to the High Court or was ruled inadmissible for procedural reasons. We wish to draw attention to the new evidence, but do so with the proviso that we cannot in all cases be sure that the evidence is new since our access to part of the court records was prevented by a party to its proceedings."

Paragraph 39

The Complaint

"That the Applicants failed to give the Committee the address of the research assistant Nancy Lee."

The Report

"39. Dr. Koo and Professor Koo also failed to give us the address of her former research assistant, Miss Nancy Lee, whom we wished to interview."

Paragraph 41(b) & (c)

The Complaints

"That the Applicants had wrongly said that Dr Lam was under pressure from a Canadian funding agency.

That the Applicants had wrongly alleged that Dr Lam had concealed information from the funding agency."

The Report

"41(b) They also allege that Dr. Lam took their questionnaire "surreptitiously" because he was under pressure from a Canadian funding agency to produce a questionnaire, while we were provided with evidence that the grant had already been made to him before the questionnaire was ready.

(c) There are also allegations of concealment of information from this same funding agency which seem to us difficult to sustain."

Paragraph 41(d)

The Complaint

"That the Applicants had misled the Committee by putting forward the opinion of foreign experts on their questionnaires when the material was in fact incomplete."

The Report

"41(d) Quotations about the high opinion by foreign experts of what is presented as their questionnaire are doubly misleading since these refer to their published papers, not to the questionnaire, and important words and clauses are omitted."

Paragraphs 73, 75, 76, 77, 78 and 104

The Complaint

" That epidemiologists had expressed surprise at the Applicants' claims to confidentiality and that their questionnaire was inferior to that of Dr Lam."

"As regards the views of epidemiologists on the content of the questionnaires and whether any confidentiality exists in respect of them, these views were elicited in response to a letter written by a Professor Hedley which is described in the Report at Paragraph 74 as "highly tendentious and was (in lawyers language "leading")". The Applicants were not supplied with a copy of this letter and did not see any of the replies."

The Report

"73. On a visual comparison of the questionnaires, it was hard for the Committee to believe that one was copied from the other. Our first impressions were therefore similar to those of the judges of the Court of Appeal that we cited in para 15(d). The questionnaires are certainly different in appearance and layout, the sequence of topics and the wording and substance of the questions. . . .

74. Dr. Lam submitted letters from 25 other epidemiologists apart from Professor Peto (whose names and positions are provided in Appendix B). Before we turn to these letters it is necessary to state that they were a response to a letter from Professor Hedley, the current Head of the Department of Community Medicine for an opinion on the similarity between the two questionnaires and their professional view on the question of copyright or confidentiality in questionnaires for scientific, academic research among epidemiologists. Professor Hedley wrote to them following a request from Mr. Griffiths (who explained to us that it was more appropriate that such a letter should come from an academic than from him). While we find this procedure unexceptional, the Committee was a little disturbed by the tone of Professor Hedley's letter. It was highly tendentious and was (in lawyer's language) "leading" (it stated for example that Dr. Koo's attitude to Dr. Lam changed when she failed to secure promotion in 1984 while he was promoted; questioned the basis of the judge's decision; expressed strong views on the need for free circulation of questionnaires; referred to an orchestration of a media campaign against Dr. Lam; mentioned a widespread sense of a grave miscarriage of justice and so on). We appreciate that it was necessary for Professor Hedley to describe the background to the present enquiry for his respondents, but we believe that in the present context it should have been done in more measured and neutral terms. However, we also note that most of his correspondents are senior and distinguished scientists, who can be expected to have an independent mind. Several of them were previously unacquainted with Professor Hedley. Many of them have provided detailed analysis of the questionnaires to support their conclusions. It seems therefore appropriate to give careful consideration to the views of these eminent scientists.

75. All of the respondents were of the opinion that there was no such similarity between the questionnaires that one could be said to have been copied from the other. We quote from two letters as illustrations of their views. Sir John Crofton, Professor Emeritus of the University of Edinburgh said,

"I am absolutely astonished at the claim that one has been copied from the other. The style is quite different. One is open-ended, the other is carefully structured for ease of analysis. Of course many of the headings, both of sections and of individual questions, are similar. As I myself have been concerned with the aetiology of lung cancer, I have been particularly interested in the relatively high rates of lung cancer in Chinese women in some areas, in spite of low smoking rates. In my own mind my provisional list of the possible agents to be investigated would have followed very much the same headings as appear in both questionnaires .....

I could imagine that a layman totally ignorant of the subject, might regard the similarity of subjects and headings, and similar wordings, as evidence of copying from one to the other. For anyone familiar with the subject, these are the headings and these are the sorts of questions which any knowledgeable person would use. But, granted that degree of identity which is inevitable if they are to be relevant to the problem, it is hard to imagine two more dissimilar questionnaires. I found the suggestion that one has been copied from the other quite absurd".

76. Professor Lee Hin Peng, Head of the Department of Community, Occupational and Family Medicine at the National University of Singapore said that the Koo questionnaire was "unstructured, open-ended and appears very sketchy", while the Lam questionnaire, in "two parts--one for 'cases' and the other for 'control' is more structured, with a lot more closed questions and definitely more focused". He found that all the items common to both questionnaires were "of a generic nature which one would reasonably expect in a study on lung cancer in Chinese females". "There were no particular questions which were similarly worded". He concluded "I cannot in all honesty see any evidence of direct copying of any questions from (a) to (b)" [i.e, from Koo to Lam questionnaires].

77. Similar views were expressed by the rest - that the questionnaires were quite different, that the Koo questionnaire was inferior to the Lam questionnaire, and that there was no evidence of one having been copied from the other.

78. We were unable to examine in person the testimony of these scientists. However, we received written evidence from Professor Richard Heller, Professor of Community Medicine and Clinical Epidemiology (University of Newcastle, Australia). In a letter to Professor Hedley dated 6 April 1994 (which was produced to us) he said that the "questionnaires are dissimilar in appearance and structure. The Lam questionnaire is a much more sophisticated document, with boxes for coding the answers and detailed instructions to avoid coding errors. Tables are clearly laid out to aid data entry and to avoid miscoding. In a professional epidemiological sense there is no doubt that the structure of the Lam questionnaire is superior ... The questions on demographics, past medical history, tobacco smoking, family smoking history, occupational history, cooking and dietary history are variants of standard questions used throughout the world in epidemiological studies. For example, the food frequency method is a common way of obtaining information on dietary intake, is used in both questionnaires (and in many of my own questionnaires) and Drs Koo and Lam have chosen different interval frequencies suggesting most clearly a lack of copying one to the other. I see no closer similarity between these questionnaires than I would expect between questionnaires to tackle the same research issues performed by complete strangers on opposite sides of the world."

79. When Professor Heller appeared before the Committee he presented it with a 34 page memorandum plus various appendices. He provided the Committee with an account of the nature and methods of epidemiological research and the state of research into lung cancer in the early l980s (particularly on the link between passive smoking and dietary factors and cancer) when both Drs Koo and Lam embarked on their research. He distinguished epidemiological research (which Dr. Lam was engaged upon) from anthropological (which appeared to him to have been a principal focus of Dr. Koo's project) . He regarded the Koo questionnaire as of poor quality ("the questionnaire format is vague and poorly laid out giving rise to the possibility of bias in the way it would be coded.. .") and said that this "inferiority of quality in itself makes the Koo-Ho questionnaire an unlikely candidate for copying by Lam, as too does the fact that it is anthropologically-based in many parts whereas Lam's is epidemiological, so that the former open-ended questions are not really suitable to an epidemiological questionnaire".

80. He then provided us with a detailed analysis of the questionnaires, starting by referring to sources available to Dr. Lam when he began his study. He concluded on this point that "I have found that there are no parts of Dr. Lam' s questionnaire which are not completely explicable as being sourced from the above literature which I understand Dr. Lam must have read in the course of his research, for it was in his possession". He took us through the two questionnaires, examining the questions, terminology, structure and form, to show that they were totally different. On the use of tabular forms (on which the High Court placed considerable emphasis), he told the Committee, "The use of tables in a questionnaire of this sort is universal practice as a convenient method of collecting information". We received similar evidence from many of the epidemiologists referred to above.

104. Notwithstanding the tendentious nature of the letter sent by Professor Hedley to epidemiologists in various countries, we noted that the unanimous view of epidemiologists who responded was that in practice and in principle there is no confidentiality in scientific questionnaires. They attested to their own experiences when they have both freely borrowed others' questionnaires and freely lent their own. A great deal of comparative research has been done on the basis of common questionnaires. Indeed Sir John Crofton went so far as to says that "any responsible epidemiologist would regard a claim of confidentiality for a questionnaire as amounting to academic malpractice". Others described claims of copyright as "absurd" and "contrary to tenets of scientific research" and unprecedented."

Paragraph 96

The Complaint

"That the Applicants had exaggerated the novelty and difficulty of their research in this field."

The Report

"95. Dr. Lam claimed that he was able to demonstrate the source of each of his questions in published literature or other materials available to him (excluding the Koo questionnaire). For this purpose he submitted a special memorandum which we have already mentioned. In it he traces the source of each question, including questions not challenged by Dr. Koo. Dr. Koo and Professor Ho did not have access to this paper, but they did to a table that Dr. Lam had presented to the Court of Appeal on a similar theme. She and Professor Ho submitted additional written evidence to us on 21 June 1994 rebutting some of Dr. Lam's claims in that table. Dr. Lam was of course shown these memoranda and on 23 July he made a further written submission to answer the Koo/Ho allegations.

96. Much of the evidence by Dr. Koo and Professor Ho's expert witnesses in the High Court, as well as the judge's decision, would appear to be based on a rather mechanistic comparison of questionnaires. We have already indicated the Committee's view of the research process, emphasising the significance of the review of literature and the hypotheses that can be generated and tested from that review. Overall we would see the acquisition of learning in the particular field together with the careful review of the literature in the sub-field of the research project as the most demanding element. Thus, in the construction of a questionnaire for a particular research project only those who have not surveyed the relevant literature and who are not equipped with the necessary training in research methods would find the process difficult and time-consuming.

97. The Committee therefore reviewed Dr. Lam's training and his study of the literature on lung cancer, particularly among Chinese women. We have already noted his training in research survey methods, his subsequent teaching of the subject, and the preparation of questionnaires for other projects before the one under review. In his graduate studies in London, he prepared a research protocol on Bronchial Cancer in Non-Smoking Women in Hong Kong, which subsequently became the basis of his successful application for a grant to the International Development Research Centre (IDRC) in Ottawa. It is clear from the content of the protocol and references that he was familiar with the leading literature and issues in this area. While in London he stayed with Professor Colbourne, who had published on the subject, and they discussed the current literature and developments and collaborated on an abstract which was presented at a conference in Edinburgh and subsequently published in Hong Kong. On his return to Hong Kong he discussed the subject with several members of the Department, including Dr. Koo and continued his reading of the literature (including, as he has freely admitted, Dr. Koo's papers). He had acquired various questionnaires used in previous or on-going studies on this subject."

Paragraph 107

The Complaint

"That the questionnaire devised by the Applicants was not an original piece of work."

The Report

"106. It is important therefore to make a distinction between questionnaires and research methods and the actual results achieved with them. The latter may remain confidential until published, and in any case much information may be secured from respondents under the promise of confidentiality or anonymity.

107. In the evidence we received there was some disagreement as to when a questionnaire may legitimately be deemed to fall into the public domain (and thereby open to anyone to use it). Unfortunately Professor Hedley's letter had not referred to this question but several respondents did make a distinction. For example, Professor Richard Doll wrote that "Had Dr. Lam been accused of using parts of someone else's questionnaire and publishing results of so doing before the original designer of the questionnaire had published theirs, there could have been grounds for accusing him of unethical conduct ..." Professor Shah Ebrahim said that if an author wished to retain copyright in a questionnaire, he or she marked it with a standard copyright mark. Professor Garraway also wrote that if a questionnaire falls in the public domain, the presumption is that it has no copyright unless "specifically notated as confidential or embargoed". Professor Hugh Tunstall-Pedoe wrote that questionnaires whose administration may require special skills, e.g. training in psychology, are sometimes copyrighted, but social and epidemiological surveys tend to be quite different". However, these scientists emphasised that copyright is possible only if there is an element of originality in the questionnaire, not for routine questions and were of the view that by this test the Koo questionnaire would not qualify."

Events Leading up to the Report

11. When the applicants heard that the Committee was to inquire into Dr Lam's conduct, they wrote, on 14 September 1993, to the Vice-Chancellor asking -

"1. Who will form the committee?

2. What will be their terms of reference?

3. What documents will they be studying?

4. What rules of evidence that fair, open, and equitable to both par ties will be used?".

12. The applicants were referred, at that stage, to the Staff Manual, but, on 29 April 1994, the secretary to the Committee wrote to the applicants saying that the Committee had instructed her to call them to meet the Committee. Initially, the applicants seemed happy with this. They wrote asking for "a list of general issues/questions that they will be asking us". On 16 May 1994, the secretary told the applicants that the Committee considered that there were a number of issues, and set these out -

"a) How did the questionnaire come into Dr Lam's possession?

b) To what extent, if at all did Dr Lam's questionnaire appear to be a copy of your questionnaire?

c) When Dr Lam read your questionnaire, what was his state of mind, and in particular did he appreciate or consider that the questionnaire was confidential to you alone?

d) What use, if any, did Dr Lam make of your questionnaire?

e) Did Dr Lam, being aware that he should not do so, deliberately copy (or plagiarise) your questionnaire; and, if so, to what extent?

f) Did Dr Lam behave in a "disgraceful or dishonourable" manner in connection with his use, if any, of your questionnaire?

g) Is there a responsible body of epidemiological opinion which believes that questionnaires are not, and should not be, the subject of copyright or of confidentiality?

h) What was the then prevailing academic practice in regard to copyright in these circumstances?

13. When the Committee came to identify the issues in the report on which they had to make a determination, these were defined in almost the same terms as set out above.

14. On 19 May 1994, the secretary sought "confirmation in writing that you have no objection to the Committee obtaining such documents as it considers may be relevant for the purposes of its Inquiry which were disclosed" in the High Court proceedings. They were told that any documents obtained would be used strictly for the purposes of the inquiry. The secretary said that Dr Lam's consent was also being sought.

15. On 1 June 1994, the secretary wrote asking if the applicants intended to take part in the inquiry, and again asked if they had any objection to the Committee obtaining the disclosed documents.

16. On 2 June 1994, Dr Koo replied to this letter, saying that they would not appear as witnesses, but, instead, would submit a written report "addressing some of the issues". Dr Koo said that they had proofs of evidence "on the research assistants which I understand the Committee is interested in pursuing". She said, presumably with reference to the request by the secretary for their attitude to the Committee obtaining the disclosed documents, "Prof. Ho and I understand very clearly that the Committee will use all documents which it is legally entitled to do".

17. The Committee was indeed interested in the research assistants, and it told the applicants so. The applicants were telephoned on 3 June 1994 and asked for the proofs of evidence. By a letter of the same date, Dr Koo said that they were "in the hands of my lawyers".

18. On 9 June 1994, Dr Koo wrote to the secretary pointing out that the proofs were privileged.

19. On 15 June 1994, the applicants forwarded their written submission to the Committee. This was a very full and detailed document, consisting, with annexures and the covering letter, some 70 odd pages.

20. On 27 June 1994, the secretary again asked for copies of the proof of evidence of Miss Nancy Lee, Dr Koo's former research assistant. The answer to this was that, in the view of the applicants, the proof was irrelevant. On 6 July 1994, the secretary once more asked for the proofs of evidence of Miss Nancy Lee and Miss SC Wong. In her reply dated 7 July 1994, Dr Koo said that the applicants declined to waive their privilege in relation to these proofs.

The Committee and the Report: General

21. There is no complaint, nor could there be, generally about the way in which the Committee approached its work and discharged its functions. It followed the law as set out in General Medical Council v Spackman [1943] AC 627. On legal advice, it properly directed itself on its task, its functions and its mode of working. It must be clear to anyone reading the report that, as one would expect, that the Committee undertook its work with responsibility, seriousness and a great deal on very hard work by the members, who all had other important responsibilities. The members of the Committee were senior members of the University, and included a professor of public law.

22. There is little doubt that the Committee were unhappy with Bokhary, J's findings; if only by reading between the lines, the report makes this quite clear. Perhaps it was encouraged in this by what it may have taken as the apparent unease of the appeal judges. The Committee rightly appreciated that Dr Lam had been condemned as a plagiarist because the applicants had been believed and his evidence had not been accepted, largely on the basis of demeanour. The Committee mentioned that their legal advisors had drawn their attention to authorities that pointed out the dangers of relying on the demeanour of witnesses, quoting a statement in a judgment of the Hong Kong Court of Appeal in R v Wing Ming (No. 280 of 1994) - "demeanour is a notoriously uncertain guide and could only be a point of last resort".

23. Penlington, JA, who gave the main judgment, said - "At first sight it is perhaps difficult to see from merely looking at the questionnaires the close similarity which is required to found a claim for breach of copyright but Bokhary, J has very meticulously indeed gone into the relevant parts of the questionnaires, and, with the aid of expert evidence, has found much similarity. . . The appellant has mounted a strong and eloquent argument that Bokhary's finding of objective similarity between the two questionnaires cannot be supported and is plainly wrong. At first sight, simply looking at the questionnaires, there seems much in that argument - as Bokhary, J himself has said the dissimilarities are much more obvious than the similarities. . . . I am myself unable to say that he was plainly wrong to come to the conclusion that he has". Nazareth, JA said - "I feel bound to say that the first and strong impression from my own visual comparison of the two questionnaires, and reinforced by Mr Griffiths' powerful submissions, was of dissimilarity rather than similarity. . . . I am satisfied that it is not possible for this Court to fault the conclusion the judge reached." Sears, J said - "I confess I have not found it easy, with a layman's eye, to recognise all these striking similarities, but this court is not re-trying the action, nor should it give the impression that it is. An appeal on fact is very difficult to mount . . ."

24. However, if I am right in this impression, the Committee did not allow its feelings to rule its head. It approached its task conscientiously, and, in doing so, as it was entitled to do, reached conclusions on the facts, with the aid of new evidence, some of it important new evidence, different from those of Bokhary, J. The Committee was conscious that it was doing this, and took pains to ensure that the reader of the report could see why. To this end, it described in some detail the evidence before it and quoted extensively some of the witnesses.

The Law

25. Before going on, it may be helpful to consider the law relevant to this case. Counsel have referred me to more decisions than I quote here, and I mean no discourtesy by not mentioning them all. I mention only the dicta that I consider most helpful for my purposes.

26. In re a Marine Court Investigation into the loss of the vessel "Barquentine Osprey" [1987] HKLR 549. In that case Liu, J found that where the integrity and reputation of expert witnesses called at a marine inquiry are to be impugned, they "ought to be fairly warned and afforded an opportunity to elaborate". He said the experts concerned in the case before him "were never warned or given notice of these unformulated charges of grave misconduct which must have been present in the mind of the Marine Court. These criticisms are strong condemnations that go well beyond collateral assessments of conduct and credibility of witnesses necessary for the purpose of the investigation with which the Marine Court was entrusted."

27. In Board of Education v Rice [1911] AC 179, Lord Loreburn, the Lord Chancellor, said, at page 182, - "They [referring to the Board of Education] can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view."

28. In Mahon v Air New Zealand Ltd [1984] 1 AC 808, Lord Diplock said, at page 820G - "The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon the evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding that a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made."

29. In re Pergamon Press Ltd 1971 Ch 388, Lord Denning, MR said, at page 399H - "The inspectors may obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice."

30. In Maxwell v Department of Trade and Industry [1974] 1 QB 523, it was submitted to the Court of Appeal that the inspectors under the Companies Act should put the substance of their tentative conclusions to those affected. Lord Denning, MR, at page 535B, said - "I do not think that is right. Just think what it means. . . . What will be the response of those witnesses? They will at once want to refute the tentative conclusions by calling other witnesses, or by asking for further investigations. In short, the inquiry will develop into a series of minor trials in which a witness will be accused of misconduct and seek to answer it. . . . It is sufficient to put the points to the witnesses as and when they come in the first place." At page 541, Lawton, LJ said - "In my judgment they are no more bound to tell a witness likely to be criticised in their report what they have in mind to say about him than has a judge sitting alone who has to decide which of conflicting witnesses is telling the truth. The judge must ensure that the witness whose credibility is suspected has a fair opportunity of correcting or contradicting the substance of what other witnesses have said or are expected to say which is in conflict with his testimony."

31. In Cheall v APEX [1983] 2 AC 180, Lord Diplock said, at page 190B - "Decisions that resolve disputes between the parties to them, whether by litigation or some other adversarial dispute-resolving process, often have consequences which affect persons who are not parties to the dispute; but the legal concept of natural justice has never been extended to give such persons as well as the parties themselves rights to be heard by the decision-making tribunal before the decision is reached."

The Duty of Fairness to the Applicants

32. There is no doubt that the Committee had a duty, in discharging its functions, to be fair to the applicants. What it did to discharge this duty was to invite the applicants to give evidence to the Committee in person, to give them ample notice of the issues and questions that it would consider, to receive their very full submission on these matters and to consider it carefully. What it did not do was to allow the applicants to appear as parties, with representation, to examine and cross-examine witnesses, to comment on the evidence received by the Committee and to comment on tentative findings of the Committee.

Consideration of the Applicants' Particular Complaints

Paragraphs 41(a), 54 and 55

33. The Committee said that the applicants repeated and presented Bokhary, J's finding of surreptitiousness as if it had the approval of the Court of Appeal. In their submission to the Committee dated 16 June 1994, the applicants said that there was "irrefutable proof that Dr Lam surreptitiously obtained 2 versions of our questionnaire" and lied about his "illegal and wrongful behaviours", that Bokhary, J found that "Dr Lam had acquired our questionnaire in an underhand and unauthorised manner without our knowledge or consent", and that the Court of Appeal "unanimously affirmed his decision and findings".

34. Bokhary, J found that Dr Lam had obtained KH4c and KH4d "surreptitiously". By this, he meant that Dr Lam was never given a copy of either document by anyone. This must mean that he took them secretly, in an underhand way.

35. Penlington, JA found that this could not taken as equivalent to a finding that Dr Lam stole KH4d; it could mean only that "the appellant did somehow come into possession of the document, and he must have know it was confidential because of the amount of work which had gone into its preparation." This finding is that to say Dr Lam took the documents in a secretive, underhand way was not justified by the evidence.

36. Nazareth, JA said that "it seems to me most likely that the respondents' questionnaire might have come into the possession of one of Dr Lam's assistants in some manner that was not surreptitious". This was also contrary to the finding by Bokhary, J. This comment by Nazareth, JA was perceptive because it appears from the evidence of the two research assistants, which was heard by the Committee, but not by the High Court, that this is just what probably happened.

37. Sears, J, recognising that Bokhary, J had held that Dr Lam's possession of the questionnaire was not only unauthorised, but he had "surreptitiously" obtained it, and that "surreptitious" could import an element of dishonesty, said that "In the present instance the word "surreptitiously" means no more than that Dr Lam had made unauthorised use of the questionnaire." Again, a finding that the evidence did not justify saying that Dr Lam obtained the documents in a secretive, underhand way.

38. There can be no doubt that the applicants well knew that the Court of Appeal had taken pains to make it clear that they found that there was no evidence at all to justify any implication in the finding of Bokhary, J. that Dr Lam had been guilty of any dishonesty or underhandedness, yet they conveyed the impression, deliberately or otherwise, to the Committee that the Court of Appeal had agreed with this finding "unanimously".

39. In an affirmation, Dr Koo says "I am at a loss to understand why we should expected to abandon a complaint of taking or unauthorised acquisition of our confidential documents . . ." This is not impressive. As Dr Koo must well know, the Committee did not criticise them for this. They criticised them for making statements that might well have created the wrong impression of what happened in the court proceedings.

40. This comment by the Committee was fully justified, and the applicants have no acceptable answer to it.

Paragraphs 38 and 48.

41. The Committee complained that the applicants were not co-operative in assisting the Committee to have full access to the court documents

42. Mr Dykes says that the sting in the report is the use of the words "effectively frustrated". He says the Committee was not "frustrated"; they were able to do the job, although it might have been made more difficult. This is mere semantics. The report says that the Committee's access to other material was effectively frustrated, not that its function was frustrated. The report conveys the impression that the applicants were difficult about this matter, and that is perfectly true. Paragraph 48 puts the matter a different way; that the applicants attitude prevented their access to part of the court records. The Committee made the point that, because the applicants did not give their consent, it could not be sure that some of the evidence they heard was new. Mr Dykes says, in effect, that they did not refuse their consent; they simply did not give it. That, in my view, is a distinction without a difference.

43. Again the comment is justified, and the applicants have no answer to it.

Paragraph 39

44. It is undoubtedly so that the applicants failed to give the address. The applicants were asked for the address by letters dated 16 May 1994 and 1 June 1994. Although answering the letters in which the request were contained, the requests themselves were ignored. In their major submission to the Committee, the applicants refer to the request, but again make no attempt to help.

45. This comment is also fully justified. It is clear to me that the applicants wanted to assist the Committee only so far as they thought this suited their interests. They have no answer to this complaint.

Paragraphs 41(b) and (c).

46. These paragraphs do no more than reject the applicants evidence as to a motive for Dr Lam "cribbing" a questionnaire of a type that they found he was perfectly capable of devising himself. It cannot be seriously suggested that, the Committee having rejected their evidence, it should give the applicants a warning that it intended to do this, and give them another opportunity to bolster their accusation. If they had done that, they would be bound to give Dr Lam a further opportunity to deal with any fresh evidence or allegations. Should the Committee then put Dr Lam's reposte to the applicants? One has to ask, if this is the procedure the applicants expected the Committee to follow, where would it end? The Committee was expected to work using its common-sense and reason. It did so. They knew there had to be an end to the inquiry. It drew the line, in my view, in the right place.

Paragraph 41(d)

47. The applicants were given the opportunity of presenting evidence to the Committee. They accepted this, although only by making a written submission. They said that their questionnaire gained a high opinion with foreign experts. The Committee examined this evidence, and came to a conclusion, as they were entitled to do. Essentially, the applicants say that they should have been given the opportunity to attempt to change the Committee's mind on this. But why? Again, to what lengths is the Committee expected to go to settle subsidiary issues? No court acts in the way that it is suggested that this Committee should have acted. I am quite sure that every litigant and witness who reads a judgment of the court in which his point or evidence is rejected has the view that, if he could have had another go, things would have been different. I am quite certain that Dr Lam, after reading Bokhary, J's judgment, dearly wished he could have had another opportunity to present his case.

Paragraphs 73, 75, 76, 77, 78 and 104.

48. The applicants had good reason to expect that the Committee would be seeking views from other experts on the questions concerning it. They might reasonably have expected that those views would differ from theirs. They were told that the Committee would be considering this issue. The Committee did so. The evidence gathered supported Dr Lam's case. Why on earth should the Committee refer this evidence to the applicants? They were expressions of opinion, not facts that reflected on the applicants character or reputation. It was part of the evidence before the Committee. The Committee knew that the applicants would not agree with these opinions. Was the Committee bound to allow the applicants to find yet more experts who might support what the applicants were advocating? Once more, one has to ask at what stage the Committee was to stop this to-ing and fro-ing. Some of the new experts criticised the Koo questionnaire, making the point that the Koo questionnaire was inferior so that it was unlikely Dr Lam copied his questionnaire from this one. The applicants may not like this, and I can understand them being hurt by the criticism, but I can find no duty on the Committee to allow an academic debate as to which was the better questionnaire in their inquiry relating to the conduct of Dr Lam.

49. The reference in paragraph 104 to "academic malpractice" makes it quite clear that the alleged "malpractice" is claiming confidentiality for a questionnaire. It is for anyone reading this to judge for themselves whether such a claim is academic malpractice. I do not know if it is, but I would doubt that such a claim would be regarded as unethical or reflect on the moral standing of the person making the claim.

Paragraph 96.

50. The contents of this paragraph seem perfectly sensible to me. How would the applicants have wished to reply to this? Would they want to say those who are equipped with the necessary training and who have surveyed the relevant literature would still find the process difficult and time-consuming? Maybe. But I do not think there is any duty on the Committee to allow the airing of these differences of opinion when its task was to examine the conduct of Dr Lam.

Paragraph 107.

51. This paragraph reported that some scientists were of the view that the Koo questionnaire was insufficiently original to qualify for copyright. That is their view. It is, of course, not the view of the applicants, and the Committee knew this. But what was to be gained by the Committee in discharging its function by allowing the applicants to say so, and, perhaps, producing other scientists who would support them?

52. These were not the only complaints; the applicants set out others in a document annexed to the notice dated 7 April 1995. But the other points raised are such as to lead only to the conclusion that the applicants, having read the report of the Committee, now want to re-open the inquiry and take a full part in it to the extent of correcting all the errors they say the Committee made in that report. This is not necessary to attain natural justice.

The Complaints Generally

53. The statements from the cases quoted above are helpful, but they do not provide the answer to the case before me. It is trite, but true, to say that every case is different. What the judge has to do in these cases, in my view, is to look at all the circumstances, what was done and what was said, and then rely on what he hopes is his innate sense of justice to answer the question - "Was it fair?" Not, it must be said, ideal, but fair. If our community was possessed of infinite time and infinite resources, it may be we could aim for a higher standard, but, things being what they are, basic fairness is the target.

54. The Committee was conducting an inquiry within a narrow compass. All it was concerned with was the conduct of Dr Lam. It was under a duty to ensure that he had a full opportunity to advance a case to show that, in spite of the conclusions of the High Court, he was not guilty of "disgraceful or dishonourable conduct". It was not conducting an inquiry into a disaster in respect of which a number of people might bear some responsibility and might be criticised. It was not conducting an inquiry into the affairs of a company in which officers and employees might be responsible and said to be to blame for what had happened. Of course it had a duty to be fair to those who gave evidence and made submissions to it, but its focus had to be on Dr Lam.

55. The applicants declined the opportunity of appearing before the Committee in person. This does not mean, of course, that they thereby abandoned any right to expect the Committee to be fair to them, but, by this act, they deprived themselves of the opportunity of having particular points put to them, face-to-face, and being able to answer them as they arose.

56. The applicants knew, and were given specific timely notice of, all the issues that would be considered by the Committee. The Committee did not stray outside these issues. The applicants had the opportunity, which they took up, of addressing the Committee on these matters. The Committee knew well their opinions on and attitude to all the issues considered by it. Accordingly, it is clear that the Committee did not consider any question or issue of which the applicants had not had full notice. The applicants also knew full well that the Committee would be making a proper inquiry into the facts; that is, that they would hear new evidence, reconsider the facts afresh, reach their own decisions and that, because of this, they might well come to conclusions on those facts that differed from those of Bokhary, J., and with which the applicants might not agree.

57. The most that can be said against the Committee's procedure is that it did not give them advance notice of findings in draft form and refer to them the opinions of the experts so that they could respond those findings and opinions. I do not think the Committee had any duty to do this. It is quite clear that the Committee had no duty to submit its draft findings to the applicants. As to the opinions of the experts, they were opinions, not facts. The Committee knew that the applicants would not agree with those opinions; it did not need to hear them say so again. It cannot be suggested seriously, surely, that the applicants would have been entitled to search the world for opinions in their favour, and submit these to the Committee. If so, these additional opinions would need to be referred to Dr Lam, and, probably, the experts who had already opined. Where does it stop? In the end, the Committee would find itself seeking to resolve an academic debate, rather than considering Dr Lam's conduct. Far from it being its duty to do this, I believe it would have been most unwise to have done so. If they had followed this procedure, they would have been bound to give Dr Lam the opportunity of replying, and, if he thought fit, of calling further evidence. In turn, if the suggested procedure is right, this additional material would have to be referred to the applicants. As Lord Denning warned, this would develop into the Committee holding a series of minor trials. That was not what the Committee was there to do.

58. Mr Dykes suggests that the Committee's duty to be fair "would have been met if some or all these procedures had been followed" -

a. If the Committee had allowed the applicants to appear by counsel who could examine and cross-examine on their behalf.

b. If they had been given sight of the evidence and arguments that could affect their interests.

c. If the Committee had adopted a standard of proof consistent with the fact that only if the complaint was considered by the Vice-Chancellor to be "demonstrably false" would the report not then go to the Council.

d. If the Committee had refrained from making findings on collateral issues which reflected adversely on the credibility "and/or" reputation of the applicants.

e. If the Committee had notified the applicants that it was minded to act on the evidence of epidemiologists selected by Professor Hedley.

f. If the Committee had given the applicants the opportunity of commenting on a draft of the report.

59. I do accept any of this. In my judgment, the duty of fairness to the applicants extended only so far as to give them sufficient notice of the issues and questions that would be considered, to allow them to express their views and give evidence on these matters, to consider what they had to say carefully, and give it due weight. This the Committee did.

60. There was nothing gratuitous in what the Committee said in its report. Everything criticised by the applicants was directly related to the job they had to do; the finding of the facts in relation to Dr Lam's conduct. The Committee came to the conclusion that it differed from Bokhary, J on some of the facts, especially in the light of new evidence that it had heard. In this situation, one would expect the Committee to do just what they did; that is, to spell out clearly why they so differed. To do that, it was necessary to recount in some detail what the evidence was, and its strength. Of course it may be that it was not absolutely necessary to say everything they said. Of course it may be possible to redraft what they said to avoid hurting the sensitivities of the applicants. But it is not my task to rewrite the Committee's report, nor is it the right of the applicants to seek to do so. It may be that the Committee was robust in places; I suspect this was because they thought Dr Lam had suffered a serious injustice, but I do not think they overstepped the bounds of basic fairness to the applicants. The Committee told the applicants what issues they were to investigate, and gave the applicants a full opportunity to say whatever they wished in regard to those issues. There is no complaint by the applicants that the Committee refused to hear what they had to say, or that the Committee did not pay proper regard to their submissions. It was only when the Committee came to conclusions that the applicants did not like that they wanted to say more. Well, there has to be an end to these matters. It cannot be right to expect the Committee to give the applicants a potentially endless opportunity to dispute evidence or tentative conclusions.

Conclusion

61. In my judgment, the Committee did not breach the duty of fairness to the applicants. In my view, there is nothing in their complaints that would justify any interference by me. But even if I had held that there had been some unfairness in certain particulars, I certainly would not made any order which would require the re-opening of the inquiry. At one stage, Mr Dykes abandoned the claim for this, recognising with his customary common-sense that such a claim was hopeless. Later, on instructions, he revived it. He was right to abandon it in the first place. If I had found unfairness, the most that I would have done would have been to state this, without a formal declaration - something to the effect of "The report stated X. The applicants should have been given the opportunity of rebutting this."

62. In the result, the application is dismissed.

Costs

63. There seems no reason apparent to me why costs should not follow the event. Accordingly, I make an order nisi that the applicants pay the costs.

Representation:

Mr Philip Dykes, instructed by Messrs Robin Bridge and John Liu, for the Applicants.

Mr Adrian Huggins, and Mr GJ McCoy, instructed by Messrs Barlow, Clyde and Gilbert, for the Respondent.