Begum Musammat Kulsuma v. The Council of the University of Hong Kong
Read the full judgment text of HCAL 243/2026 on BabelCite. This High Court CFI judgment was delivered on 26 May 2026.
1. The Applicant has been a post-graduate student at the University of Hong Kong (“HKU”). She is dissatisfied with the decision taken to refuse to award her a doctorate.
Cites 2 cases
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HCAL 243/2026 [2026] HKCFI 2839 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 243 OF 2026 ________________________ BETWEEN
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________________________ REASONS FOR DECISION ________________________ A. Introduction 1.The Applicant has been a post-graduate student at the University of Hong Kong (“HKU”). She is dissatisfied with the decision taken to refuse to award her a doctorate. 2.By Form 86 dated 23 January 2026, the Applicant challenges the decision of the Supreme Governing Body of HKU to fail the Applicant in the Doctor of Philosophy (“PhD”) oral examination, and instead to recommend the conferment of a Master of Philosophy (“MPhil”) degree, as contained in the Joint Examiners’ Report dated 24 October 2025 (“Decision”). 3.The Applicant seeks:
4.Having considered the papers, I indicated that I was not prepared to grant either leave to apply for judicial review or any interim stay on the papers on an ex parte basis. Instead, I fixed an oral hearing on 11 February 2026, of which notice was to be given to the Putative Respondent (i.e. HKU), with permission to file a prior initial response. 5.At that hearing, I was persuaded to adjourn the matter to permit discussions between the parties in the hope of reaching a consensual resolution. In case the hearing were still needed, I re-fixed the hearing for 2 April 2026, subsequently (to provide more time, and for the Applicant to give birth to another child) re-fixed for 12 May 2016. The matter was not able to be resolved consensually between the parties, and hence the Applicant’s applications were pursued. 6.At the hearing, the Applicant appeared in person and HKU was represented by Mr William Wong of Counsel, who had earlier filed the HKU’s initial response. 7.At the end of the hearing, I refused the application for leave to apply for judicial review and accordingly denied the grant of any interim relief, with reasons to be handed down later. 8.These are my Reasons for Decision. B. Background 9.I shall not attempt a complete review of the materials and contemporaneous correspondence. It seems to me that the following matters suffice for identifying the relevant factual background. 10.In 2020, the Applicant commenced a three-year PhD programme at the Department of Pharmacology and Pharmacy of HKU (“Department”) under the supervision of Professor Wang. That initial three-year period was later subject to extensions. 11.Nevertheless – and this is a matter on which the Applicant placed great reliance in these proceedings – between September and December 2023, Professor Wang authorised submissions allegedly using the same data as the Applicant’s (draft) thesis in the Circulation Research and Cardiovascular Research medical journals. 12.On 4 September 2023, the Applicant sent Professor Wang a thesis draft, and further stated that she could try to request from the graduate school or faculty whether they provide a 2-week grace period for thesis submission. On 7 September 2023, Professor Wang replied asking the Applicant to apply for at least a three month extension for the submission of her thesis. Professor Wang also asked the Applicant to focus on her own data and experiments performed by herself, as only if she had done the experiment could the data be analysed properly and interpretation would be more accurate. She asked for the revised draft by the following Sunday. 13.On 6 November 2023, Professor Wang again requested the Applicant to send the thesis draft “asap”. On 13 November 2023, the Applicant sent a further draft of the thesis. On the same day, Professor Wang replied with comments “Please complete Chapter 4 and sent me asap. Should contain the mTOR Western blotting results!!!”. On 13 November 2023, the Applicant sent another draft. 14.By email dated 19 November 2023, Professor Wang wrote to the Applicant to query some of the data. On the next day, Professor Wang wrote again stating that she really did not think that the Applicant’s thesis would pass a PhD defence, and suggested the Applicant instead graduate as a MPhil candidate. In her replies, the Applicant did not directly address that question but addressed the question on data, sought advice on the results, and stated that she would keep gathering and sending the data both before and after the analysis if that was all right. Professor Wang replied “OK”. 15.On 26 January 2024, the editorial manager of Cardiovascular Research apparently notified Professor Wang of an editorial decision relating to the submitted article. Professor Wang in turn notified the authors that there was an unfortunate need to re-analyse the results and data, and restructure the whole study as a new manuscript for submission. 16.By email at 02:23 on 27 January 2024, the Applicant wrote to Professor Wang stating that she had almost finished writing, but had little left. She said that she would hopefully finish and send it soon. She also informed that she had that week been blessed with a baby boy and discharged on that day from hospital. 17.On the evening of the same day, 27 January 2024, Professor Wang replied as follows:
18.This is the email which the Applicant suggests marked a radical and contradictory shift in the approach taken towards her by Professor Wang. 19.On 5 February 2024, the Applicant provided a third draft of the thesis to Professor Wang. Professor Wang replied as follows:
20.On 14 February 2024, the Applicant wrote to Professor Wang stating that, since her PhD thesis needed further improvement, she would work more on it according to the Professor’s suggestions. She said that is why she would extend her candidature for another year to work on PhD thesis for PhD degree and that getting an MPhil degree would not help her get her desired job back in her own country (as she already had one MPhil and one general master’s degree). 21.On 15 February 2024, Professor Wang sent back the draft as an attachment, with the words “PhD” on the title page crossed out and replaced with “MPhil”. Professor Wang also stated as follows (sic):
22.On 21 February 2024, Professor Wang informed another staff member (“Esther”) about the status of the Applicant’s thesis submission, and stated the Applicant “has just got another baby”, and suggested the Applicant “transfer to MPhil and complete her thesis asap”. 23.On 28 February 2024, Esther wrote to Professor Wang and the Applicant regarding the requirements for transferring to MPhil, which included repayment of the HKU Presidential PhD Scholar Programme package and completion of 3 research postgraduate program course works. 24.On 29 February 2024, the Applicant sought Professor Wang’s advice. Professor Wang replied that the best solution would be to move on, that is to complete the thesis as an MPhil candidate. Otherwise, the Applicant would need to withdraw from current candidature, and Professor Wang stated that she was not convinced that the Applicant would complete a PhD thesis by asking for an extension. 25.On 12 March 2024, the Applicant wrote to Esther seeking help on the extension application process. When Esther notified Professor Wang, the latter indicated that she did not know about the extension and that her e-signature had been used without permission, hence she declared disassociation from the application. The Applicant subsequently apologised for the mistaken use of the e-signature and re-submitted her extension application without it. 26.On 30 April 2024, the Applicant was asked by Esther to confirm whether she could submit the thesis on before 31 May 2024, otherwise it was suggested to apply for a six-month extension to 31 August 2024. On 3 May 2024, the Applicant informed Professor Wang that she was revising the extension form to extend the candidature until August. 27.Also on 3 May 2024, Professor Wang suggested the Applicant apply for a one-year extension to write a “proper” PhD thesis. It was pointed out that the Applicant had not submitted a six-month extension as suggested before, so this would be counted as the third extension. Professor Wang said that she did not think the Applicant would be granted a fourth or fifth extension, so a longer period of extension application would give more flexibility. Professor Wang further suggested the Applicant apply for non-study leave and maternity leave during a pregnancy period, and after childbirth. Consequently, it seems, the Applicant agreed and applied for a one-year extension without funding. However, the Applicant also pointed out her own financial difficulties. 28.By emails dated 5 and 6 May 2024, Professor Wang chased the Applicant for missing information and “true raw data from your experiment!!!!”, on the basis that what had been attached mainly contained fake data. On 6 May 2024, the Applicant replied that the experiments were done by her, and offered some explanation of the data. Later the same day, Professor Wang sought the correct raw data, and stated that any studies or experiment about quality data or lack of rigour could not be used for analysis. 29.Ultimately, in about May 2025, the Applicant submitted her final thesis for examination. 30.The Thesis Examining Committee (“TEC”) comprised four members: the chairman (Professor Hui-Ling Yen), two internal examiners (Professor Zhongjun Zhou and Professor Aviva Shing-Fung Chow), and an external examiner (Professor Dharmani Devi Murugan). 31.On 13 October 2025, the Graduate School, in accordance with the findings of the TEC, concluded that the Applicant failed the oral examination and should not be permitted any re-examination, and that a MPhil degree be conferred, provided all suggested corrections and/or revisions are made within three months. 32.By letter dated 24 October 2025, HKU communicated to the Applicant that the Graduate School approved the recommendation of the Board of Examiners that the Applicant had failed the thesis examination for the PhD, but that she should be conferred a MPhil degree on exceptional grounds, provided that correction and amendments as suggested by the examiners are addressed satisfactorily within three months. The Applicant was provided a summary of the oral examination results. 33.On 13 and/or 31 October 2025, the Applicant lodged a complaint with the Faculty Office, seeking an investigation to address her concerns related to her PhD defence. She expressed particular concerns regarding the conduct of the examination, particularly with respect to potential biases stemming from the internal examiners selected by Professor Wang, and about the fairness of the evaluation process. By email dated 11 November 2025, the Applicant was informed that the decision of the Board of Examiners is final under University regulations. In the meantime, an investigation panel had been set up to investigate her complaint case. 34.On 8 January 2026, Kimmy Liu, Senior Manager (Research Affairs) of the HKU Faculty of Medicine replied to the Applicant’s complaint, stating, amongst other things, that:
35.As I understand it, because of her desire to obtain a PhD, the Applicant has not completed and submitted the materials in order to obtain the MPhil (whether that is correct or not does not impact the decision in this case). C. Relevant Framework 36.HKU is a public body incorporated under the University of Hong Kong Ordinance Cap 1053 (“HKUO”). The HKUO also designates the Council as the supreme governing body of HKU. 37.Section 11 of the HKUO provides for the power to establish committees and delegation of powers and duties to any committee by the Court, the Council, the Senate and the Board of any Faculty. 38.Under section 15(a) and (d) respectively, HKU shall have power to confer such degrees as may be specified in the statutes (including PhD degrees), and may after due enquiry deprive persons of such degrees as may be specified in the statutes. 39.The Regulations for the Degree of Doctor of Philosophy (PhD) as can be found on the HKU Graduate School website, which provides at Regulation 1 that the PhD degree shall be awarded to a candidate who (1) satisfactorily completes coursework, where prescribed, (2) presents a successful thesis representing the result of the candidate’s research which should be an original contribution to knowledge and worthy of publication, and (3) satisfies the examiners in an oral examination (and any other examination if required) in matters relevant to the subject of the thesis. 40.As can be seen, the presentation of a successful thesis does not necessarily lead to the grant of a PhD. It is a further requirement that the candidate also satisfies the examiners in an oral examination in relation to matters the subject of the thesis. 41.Regulation 6 states that a candidate may apply for transfer to MPhil candidature within twelve months for three-year full-time PhD candidates and eighteen months for four-year full-time PhD candidates. 42.Regulation 10 provides for the submission of progress reports at biannual intervals. Candidates may also be required to give one or more seminars on any part of their course of study and research. 43.Regulation 16 provides that a candidate who has satisfied the examiners shall be recommended for conferment of the degree of Doctor of Philosophy. Regulation 16A on the other hand provides that a candidate who has not satisfied the examiners may be required to (1) resubmit the thesis after making corrections and amendments as required by the Board of Examiners, without a new examination, or (2) revise and resubmit the thesis for a new examination within a specified period with the possibility of a new oral examination or any other examination as appropriate, or (3) attend a new oral examination or any other examination as appropriate, or (4) may be deemed to have failed, without the option of resubmission. D. Intended Grounds of Review 44.The Applicant put forward five intended grounds of review, being:
45.Ground 1 sought to raise general issues of procedural impropriety and breach of mandatory regulations, but it is in substance a precursor or rerun of Grounds 2 to 5 with no significant additions. As such, it is convenient first to deal with Grounds 2 to 5, and then return to Ground 1. E. Preliminary Issues 46.It is, however, convenient first to address preliminary objections taken by Mr Wong to the Applicant’s application. E.1 Amenability 47.For a decision to be susceptible to judicial review, there must be a sufficient public law dimension. Whilst the nature of the source of power or discretion is by no means irrelevant, it is the nature of the functions that the decision-maker was performing when making the decision under challenge that is of crucial importance. What is sufficient is a matter of fact and degree, depending very much on individual cases. 48.As stated above, section 15 of the HKUO provides HKU with the power to confer such degrees as may be specified in the statutes, to award diplomas and certificates and such other academic distinctions as may be specified in the statutes, and after due enquiry to deprive persons of such degrees, diplomas, certificates and other academic distinctions as may be specified in the statutes. There is at least some element of public law present in this application. But whilst universities established by statute are public bodies, not all decisions made by universities are amenable to judicial review. 49.As a matter of principle it is well established that academic judgments are non-justiciable, and any challenge to the merits of an academic judgment are not amenable to judicial review. 50.A distinction can be drawn between a challenge to an academic judgment requiring knowledge of academic conventions, which is non-justiciable, and the procedural fairness or rationality of the decision, which is reviewable: see Chan Yan Cheong v Research Grants Council of University Grants Committee [2020] 2 HKLRD 247, at §§17-18. That is not to say any challenge which involves academic judgment is automatically invalid, because the court can review the true basis underpinning or behind the decision-making process: see Loh Ming Yin v Hong Kong Examinations and Assessment Authority [2020] HKCFI 1135 at §17. But, it is emphasised that a university is better equipped than the Court to consider issues of academic judgment in breadth and in depth. 51.In my view, the present case essentially involves an intended challenge to TEC’s assessment of the academic merits of the Applicant’s PhD thesis and oral examination. That is non-justiciable. Indeed, I agree with Mr Wong’s submission that questions of whether the Decision is internally consistent with the TEC’s written assessments involve academic and scientific evaluation that properly falls within the remit of the TEC, not the Court. 52.Further, unlike in Loh Ming Yin, I am unable to ascertain any points of general public importance which may potentially benefit the wider community arising from this case so as to justify any exercise of discretion in dealing with cases of academic merit. With respect, the results of this application affect only the Applicant, and pose no further benefits to the larger public. 53.As such, for the reasons stated above, I find this application not to be amenable to judicial review. Leave may be refused on this basis alone. E.2 Failure to Exhaust Alternative Remedies 54.The public law nature of judicial review and the type of remedies that may be granted identify that applications for leave to apply for judicial review should be taken only as a last resort. An applicant should exhaust all appeal procedures or alternative remedies before resorting to judicial review. Where alternative remedies have not been exhausted, the Court may in the exercise of its discretion refuse to grant leave to apply for judicial review. 55.However, a degree of flexibility exists to cater for cases where it can be shown that an exception must be made to allow for immediate intervention by the Court if substantial injustice is to be avoided. However, I do not think this particular application falls into that category. 56.Mr Wong submitted the Applicant faced two avenues of redress that could provide possible relief which were not exhausted before the judicial review application was brought before this Court, namely a civil claim under the Sex Discrimination Ordinance Cap 480 (“SDO”) and a complaint to the Equal Opportunity Unit (“EOU”) of HKU. 57.As the long title provides, the SDO deals with certain kinds of discrimination, including discrimination on the ground of marital status and/or pregnancy. Section 75 restricts the commencement of proceedings where the subject matter concerns such discrimination, but section 76(1) provides that a claim for discrimination may be made the subject of civil proceedings in like manner as any other claim in tort. 58.Under section 84 of the SDO, a person may lodge with the Equal Opportunities Commission (“EOC”) a complaint in writing alleging that another person has done an act which constitutes discrimination. The EOC shall conduct an investigation into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates. Section 85 provides that, where there has been no settlement, the complainant may institute proceedings to make an application to the EOC for assistance in respect of those proceedings. 59.Section 86 of the SDO provides that any claims under section 76 are to be brought within 24 months beginning when the act complained of was done, or, if there is a relevant report in relation to that act, with the day on which the report is published or made available for inspection under section 73. 60.Thus, there is at least an avenue for the Applicant to institute proceedings in respect of the alleged discrimination suffered other than by way of judicial review which has not been exhausted yet. The Applicant submitted that the District Court lacks the supervisory power to grant the primary relief of a certiorari to quash the Decision and a mandamus to order a fair PhD re-examination. That may be correct: see section 75(2). However, section 76(3A)(a) and (b) provides that the District Court may make a declaration that the respondent has engaged in conduct, or committed an act, that is unlawful under the SDO, and order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant. In any event, I have already held that the Decision is not amenable to review. 61.Secondly, HKU’s Equal Opportunity Policy dated March 2021 provides for the adoption of Procedures for Handling Discrimination/Harassment Complaints (“Procedures”). The Equal Opportunity Policy forbids inter alia sex discrimination, pregnancy discrimination and family status discrimination. 62.The Procedures apply to complaints made by and against current full-time or part-time employees and students of the University about any discrimination/harassment covered by the Policy. A complainant may make a formal complaint in respect of any allegations of discrimination or harassment to HKU through the Equal Opportunity Officer. 63.The Equal Opportunity Officer shall undertake a preliminary inquiry into the complaint to determine whether there is prima facie evidence that the respondent may have engaged in discrimination, and submit a written report to the President and Vice-Chancellor, who may then refer the matter to the Discrimination Complaints Committee (“DCC”) for a full-scale investigation and/or refer the matter to an outside body. 64.Where the DCC finds the respondent has engaged in discrimination, it may make recommendations to the President and Vice-Chancellor for action consistent with University Statutes and Regulations, and terms and conditions of employment, and decide what appropriate sanctions or proceedings shall be taken in light of the recommendations of the DCC. This seems to provide the DCC, President and Vice-Chancellor with a wide discretion as to potential remedies. 65.As to the Applicant’s argument that the EOU is an advisory and academic body which lacks the jurisdictional power to stay an academic deadline, overrule the Vice President or vacate a decision of the Board of Examiners, I would find this holds little weight. Although the Equal Opportunity Officer (and by extension the EOU) may indeed be an advisory body, the complainant may benefit from a rather wide range of relief if the matter is escalated to the President and Vice-Chancellor. In reality, this point again goes to the view that this judicial review application is more of an “appeal” against her academic result. 66.Without taking a view to the veracity and strength of the Applicant’s claims yet, I find it questionable why the Applicant, strongly convinced that there was a case to be made for discrimination arising from her pregnancy and childbirth, did not first file a complaint with the Equal Opportunity Officer to investigate and resolve the matter, or initiate a claim under the SDO with the Equal Opportunities Commission. 67.I further note the Applicant’s own assertion that the DCC “is not an academic appeal body”. The remedies which the Applicant hopes to pursue are those related to academic judgment, such as “quashing degree results ratified by the Board of Examiners”, “ordering a PhD re-examination by a neutral panel” and “staying the imminent MPhil submission deadline”. In light of this, I am somewhat persuaded this application goes more to a question of academic merit rather than a true discrimination claim. 68.The Applicant submits that the principle against failure to exhaust alternative remedies does not apply where the alternative remedy is ineffective or inadequate, and contends the internal investigation reached no conclusion after months of delay. With respect, this is simply untrue. It is plain that the Department Investigation Panel and the Departmental Research Postgraduate Committee reached a conclusion and found that the discrimination claims were unsubstantiated. 69.The cancellation of the grievance meeting with the Dean also does not assist the Applicant’s case that the doors to internal remedies were “slammed shut”. This is particularly so where the Applicant and HKU were apparently engaged in without prejudice discussions with a view to bringing these proceedings to an end. It appears HKU has all along demonstrated a willingness to hear the Applicant’s complaints. 70.In the premises, I find that the Applicant has not exhausted all alternative remedies, nor are there any exceptional circumstances which justify the grant of leave notwithstanding such failure to exhaust alternative remedies. 71.Notwithstanding that my decision on the two preliminary objections, singly or together, renders the application for leave to apply for judicial review liable to dismissal for those reasons alone, I will go on to consider the merits of the intended grounds of review. F. Ground 2: Irrationality and Internal Inconsistency Ground 72.The Applicant claimed the Decision is irrational and factually inconsistent with the written assessments provided by the examiners in the Examiners’ Report. She relied, for example, on the fact that the Examiners’ Report stated that “content meets PhD standards”, the Applicant is “well-position to become an independent researcher”, the work is “original” and “novel” and that the methods are “reliable” and the thesis is “written in a logical way”. The Applicant submitted that the inconsistency between positive individual assessments and the final joint decision to “downgrade” the award suggests that the final outcome was not based on academic merit alone. 73.But Mr Wong submitted that the documentary evidence shows that the TEC rigorously tested the Applicant’s knowledge, rationale of the experimental design and the robustness of the data before coming to their conclusion. Though it is perhaps precisely the kind of exercise with which the Court exercising its supervisory jurisdiction should not be concerned, and it would be easy for everyone to ‘cherry-pick’ the parts they like, it can be noted that, amongst other things, it is stated in the Examiners’ Report that:
74.This is corroborated by or reflected in the TEC’s comments following the oral examination, where the examiners felt the results from the thesis “tended to be superficial measurements without in-depth investigation”, and the results presented “did not fully support her conclusions”. The examiners concluded that the quality of the thesis did not meet the expected standard and the Applicant had failed the oral exam. 75.Academic assessment in the context of a PhD requires continuous evaluation. Just because the research was deemed “satisfactory” at an early stage of the programme does not mean that remains the case later, perhaps even years later. The threshold for establishing Wednesbury unreasonableness is high, and not one the Applicant has demonstrated is reasonably arguable for Ground 2. I do not accept that a mere difference in the earlier individual assessments of the thesis and the final grade awarded to the Applicant reasonably arguably demonstrate any irrationality. In any event, I have also pointed out that a successful thesis is not sufficient for the grant of a PhD, which also requires passing the oral examination on matters relating to that thesis. 76.I do not see any reasonable argument that the final decision was reached by ignoring the objective academic merit documented in the individual reports. Rather, it is clear that the TEC – independently and separately – agreed with Professor Wang that the Applicant did not meet the academic level expected of a PhD candidate, and they failed her following the examination. 77.Indeed, this ground seems to me to be specifically a merits challenge, non-justiciable in an intended judicial review. It amounts to an impermissible attack on the TEC’s academic judgment. 78.Ground 2 is not reasonably arguable with any realistic prospect of success. G. Ground 3: Irrational and Pretextual Arrangement Ground 79.The Applicant submitted there was a radical and contradictory shift in Professor Wang’s assessment of her thesis which occurred shortly after the Applicant disclosed her childbirth on 27 January 2024. She further submitted the decision to “downgrade” the Applicant’s degree is based on a fabricated pretext, in light of the previous confidence maintained about the Applicant’s research, and the authorisation by Professor Wang of submissions to professional journals. 80.With respect, this allegation is not reflected in the correspondence between the Applicant and Wang. There is no such “radical and contradictory shift” in Professor Wang’s assessment in late January 2024. As I have set out above, since at least 2023, Professor Wang had expressed doubts as to the accuracy of the Applicant’s research data. Similar doubts were voiced by the TEC. Between September 2021 and November 2023, the research completed was estimated to be 30%, indicating little to no progress between two years. Further, as early as 2 March 2023, Professor Wang stated her belief that the Applicant would not be able to submit her thesis on time. 81.I note in particular the sixth biannual progress monitoring report produced by Professor Wang for the review period of 1 March 2023 to 30 November 2023, i.e. the period before the Applicant gave birth to her second child. The overall review of the Applicant’s progress was stated to be “barely satisfactory”, which was a change from the “satisfactory” grade achieved in previous reports. The reason given was that the Applicant’s “second pregnancy distracted her from the research”. The frequency of communication dropped from “once weekly or more frequently” to “less frequently than once monthly”, with the reason that “[the Applicant] was pregnant and responded less frequently to [Professor Wang’s] emails. She was also having very little time to focus on her thesis work”. Ultimately, the report states the Applicant was warned both orally and in writing. 82.Furthermore, there is no basis to suggest Professor Wang had contradicted her earlier comments on the Applicant’s research and suggested she accept a MPhil instead of a PhD purely because of the Applicant’s pregnancy and childbirth. 83.Conversely, it was the finding of the Department Investigation Panel and the Departmental Research Postgraduate Committee that the discrimination claims were unsubstantiated. Instead, it would appear Professor Wang, in consideration of the Applicant’s difficulties and duties arising from childbirth, offered support and invited the Applicant to consider completing a MPhil degree, particularly where the Applicant had already exceeded the normative candidature period in which to complete her PhD. Indeed, it can be noted that this arose in the following context – in addition to those matters evident from the background matters set out above:
84.Further, it is clear that Professor Wang’s statement that the data required comprehensive reanalysis and complete restructuring was not triggered by the Applicant’s announcement of childbirth, but in response to the editorial decision taken by one of the publications, notified on the same day. 85.I also agree with Mr Wong’s submission that because Professor Wang did not sit on the TEC, this complaint as a whole is irrelevant to the Decision. 86.Ground 3 is not reasonably arguable with any reasonable prospect of success. H. Ground 4: Unlawful Discrimination and Apparent Bias Ground 87.Ground 4 went to Professor Wang’s “dissociation” from the thesis and allegations that the data was “untrustable”. The Applicant alleged that this, in conjunction with the timing of these actions being immediately after the Applicant’s disclosure of her childbirth, establishes a prima facie case of pregnancy discrimination. 88.First, I have already noted that the allegation of a radical shift in approach is not borne out by the contemporaneous materials. The materials do not support any reasonable argument that Professor Wang subjected the Applicant to differential or prejudicial treatment as a result of her childbirth. 89.Further, I note that the comment about the data being “not trustable” was given by people who gave feedback as to the Applicant’s research, including the thesis examiners. 90.As to Professor Wang’s “dissociation”, I take into account the correspondence between the Applicant and Professor Wang dated 12 March 2024 as canvassed above, whereby Professor Wang refused to support the Applicant’s application for a third candidature extension (in circumstances where the Applicant had also used an e-signature for which she was not authorised). The dissociation was in the first place from the making of the extension application, even if it later extended – in circumstances where Professor Wang had been saying repeatedly over a lengthy period of time that the work was not up to the standards of a PhD – to distancing from the Applicant’s work itself. 91.I also note that the Applicant’s claims of discrimination were found to be unsubstantiated by the Department Investigation Panel. In any event, the Applicant has not shown how the TEC members would have been aware of the Applicant’s pregnancy and childbirth, nor do I see any evidence supporting any reasonable argument that the TEC took this into account in failing the Applicant upon her oral exam. 92.In addition, the allegations of discrimination are aimed at Professor Wang. The Applicant has not shown any circumstances leading to a reasonable argument that a fair-minded and informed observer would conclude that there was a real possibility that the TEC was biased. 93.The Applicant claimed that she was denied equal preparatory support, including the opportunity to undergo a mock viva, as was provided to a similarly situated male peer. But I agree with Mr Wong that this allegation has been poorly particularised, and there is in any event no explanation as to the relevance of those matters to the Decision made by the TEC. The allegation cannot reasonably arguably lead to a conclusion of discrimination or apparent bias. 94.I reject the Applicant’s submission that there is a realistic prospect of proving apparent bias because the examiners were “exposed to negative departmental criticism” of her work at the 2023 conference before the examination began. Any expressions of an opinion on an interim basis, during the ongoing process of the production of the thesis and a potential oral examination, do not support the submissions. 95.Ground 4 is not reasonably arguable with any realistic prospect of success. I. Ground 5: Procedural Impropriety and Breach of Statutory/University Regulations Ground 96.Ground 5 was premised on the foundation that Dr Jianhui Rong (“Dr Rong”) was the chairman of the TEC. Given the history of collaboration professional partnership between Dr Rong and Professor Wang, the Applicant submitted that the appointment of Dr Rong to the TEC constituted a breach of HKU’s own mandatory conflict of interest regulations. 97.But this is simply factually wrong. The chairman of the TEC was not Dr Rong, but Professor Hui-Ling Yen, which the Applicant now concedes. As such, this ground was founded on an erroneous assumption and must fail. 98.Further, I have already pointed out that the Applicant’s submission that the internal examiners had previously seen the Applicant’s research and/or thesis prior to the actual defense does not assist her case. Litigants who allege bias face a high hurdle, which the Applicant has not reasonably arguably sufficiently met. 99.Ground 5 is not reasonably arguable with any realistic prospect of success. J. Ground 1: Procedural Impropriety and Breach of mandatory Regulations 100.As already stated, Ground 1 essentially summarised or trailed the other intended Grounds of review, reframed in the alleged context of procedural impropriety and breach of mandatory regulations. In reality, repackaging of those allegations does not add anything new. 101.The Applicant further alleged that her PhD examination was procedurally flawed due to prejudgment by Professor Wang. However, again this is irrelevant because Professor Wang did not sit on the TEC, and was therefore not directly involved in the examination of the Applicant’s work nor in the final rendering of the Decision. As Mr Wong noted, the Applicant also does not directly allege that the TEC’s decision was somehow influenced by Professor Wang’s opinion. I also note that the TEC included the external examiner. 102.Ground 1 is not reasonably arguable with any realistic prospect of success. K. Refusal of Leave and Interim Relief 103.The process of attaining a PhD is rigorous and certainly not easy, and I appreciate the Applicant’s personal difficulties whilst juggling her responsibilities as a mother, whilst pregnant a second time, and simultaneously as a post-graduate student. I also acknowledge that it may be unfortunate that the Applicant’s efforts over an extended period – indeed, one extended more than once as a matter of apparent necessity – has not resulted in the grant of a doctorate degree. 104.However, for the reasons given above, I dismissed the Applicant’s application for leave to apply for judicial review. In short, the Applicant failed to identify any reasonably arguable public law ground of review with any realistic prospect of success. Further, her intended challenge was ultimately to a matter of academic judgment which is not amenable to review. Further still, alternative remedies are or were available. 105.Where leave to apply for judicial review has been refused, there is no basis upon which to grant any interim relief. This is because there will not be any substantive hearing, so that there is no interim period between the date of the application for that relief and any substantive hearing. L. Costs 106.I reserve the question of costs to be dealt with in this Reasons for Decision. 107.Mr Wong submitted that there are weighty factors justifying an adverse costs order against the Applicant, even in circumstances of an ex parte application for leave to apply for judicial review. He submitted that (1) the Applicant’ this application was wholly unmeritorious; (2) the application would serve only the Applicant’s personal interest and not any wider public interest; (3) the analysis of the case shows that there was a failure of full and frank disclosure; and (4) HKU incurred time and costs in preparing the initial response and to appear at the hearing, so as to assist the Court at its invitation. 108.There is force in those submissions. However, ultimately in the exercise of my broad discretion on costs, I have decided that there should be no order as to costs.
The applicant, acting in person Mr William Wong, instructed by Gibson, Dunn & Crutcher, for the putative respondent |