曾品熹 v. 香港城市大學
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HCAL 1085/2026 [2026] HKCFI 4589 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1085 OF 2026 ________________
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________________ J U D G M E N T ________________ I. INTRODUCTION 1.Before me is the notice of application for leave to apply for judicial review filed by the Applicant on 12 June 2026 (the “Form 86”). The subject decisions are two decisions made by the Putative Respondent (“CityU”), one of the universities in Hong Kong. The decisions are:-
II. BACKGROUND 2.The Applicant was an undergraduate student of CityU for the Bachelor of Engineering in Biomedical Engineering programme since Semester A 2021/22, which commenced on 30 August 2021. 3.There is no dispute that the Applicant had to observe or bound by the Academic Regulations (the “AR”) for Undergraduate Degree. At all the material times, the relevant provisions provided:-
4.As mentioned above, the Applicant was an undergraduate student of CityU for the Bachelor of Engineering in Biomedical Engineering programme since Semester A 2021/2022. The relevant SGPAs of the Applicant are the following:-
5.Accordingly, since the Applicant scored less than SPGA 1.70 for three semesters, pursuant to AR13.2(i), by a letter dated 7 June 2024, the Academic Regulations and Records Office (the “ARRO”) informed the Applicant that the Dean had decided to terminate the Applicant’s study. For convenience, this decision shall be referred to as the “2024 Termination Decision”. 6.On 27 June 2024, pursuant to AR15.2.6 and AR15.2.7 the Applicant requested the Associate Provost (Academic Affairs) to review the 2024 Termination Decision, Professor Wang, who happened also to be the Chairperson of the Academic Review Committee at the time, on the ground of health conditions. On 12 July 2024, the Academic Review Committee considered the matter, and came to the view that the student’s health conditions were not brought to the attention of the Dean for the 2024 Termination Decision and that the health conditions were new evidence the Dean should consider. The Academic Review Committee conveyed their view to the Dean for reconsideration. 7.By a letter dated 12 July 2024, Professor Wang, in the capacity of the Chairperson of the Academic Review Committee, informed the Applicant of the result of the Academic Review Committee’s consideration of his request. 8.By a letter dated 31 July 2024, Professor Wang informed the Applicant of the final decision made by the Dean (the “2024 Review Decision”):-
9.The Applicant’s SGPA for Semester A 2025/26 was 1.10. 10.On 6 January 2026, the Department of Biomedical Engineering sent an email to the Applicant:-
11.By a letter dated 21 January 2026, the ARRO informed the Applicant that the Dean had made a decision (that is, the 2026 Termination Decision) to terminate the Applicant’s study in view of his unsatisfactory academic performance. 12.The Applicant requested the Associate Provost (Academic Affairs) (Professor Wan, also the Chairperson of the Academic Review Committee) to review the 2026 Termination Decision. By the last email, sent on 26 January 2026 at 10:27am, of the series of the emails sent to the Associate Provost (Academic Affairs), the Applicant submitted his “final, structured version of [his] appeal submission” “supersed[ing] all prior versions”. 13.Having considered the Applicant’s emails and submissions, by a letter dated 2 February 2026, Professor Wan informed the Applicant of the 2026 Review Decision that:-
14.At the request of the Applicant, on 23 February 2026, Professor Wan met the Applicant. The essence of the meeting (the “23 Feb Meeting”) is that:-
15.On 12 June 2026, the Applicant filed the Form 86. In the Form 86, the Applicant requested a rolled-up hearing and an interim injunction staying the 2026 Termination Decision and the 2026 Review Decision. Given the way the Applicant, acting in person, presented his case in the Form 86, I found the Putative Respondent’s assistance necessary. I thus directed a rolled-up hearing with directions for filing affirmations, and purely for preserving the status for a meaningful hearing, I also granted an interim interim injunction pending the hearing. III. THE FORM 86 OUT OF TIME 16.The 2026 Review Decision was made in February 2026. The Form 86 was filed on 12 June 2026, about 1 month after the expiry of the 3-month limit. The delay is not significant. Therefore, I am prepared to consider the merits of the ground. IV. GROUND OF JUDICIAL REVIEW IN THE FORM 86 AND SUPPORTING AFFIRMATION 17.The ground of judicial review set out in the Form 86 and the supporting affirmation is, in summary, that upon the 2024 Review Decision, the SGPAs for Semester B 2021/22, Semester B 2022/23 and Semester B 2023/24 considered in the 2024 Termination Decision as reviewed upon the 2024 Review Decision, should not be considered in the 2026 Termination Decision and the 2026 Review Decision. The Applicant submits that the 2024 Termination Decision as reviewed upon the 2024 Review Decision was the “final decision of the Dean”, and to count again those SGPAs would be unfair, ultra vires and/or double jeopardy and would not be permitted by the principle of functus officio. 18.First, the Applicant was bound by the AR. I do not accept any faint suggestion that despite the Applicant’s signature of a declaration in effect to be bound by, among others, the AR did not bind the Applicant. The Applicant, qualified to receive tertiary education, was educated enough to be held to what he signed. 19.Second, AR13.2(i) clearly is to ensure that the students of CityU would be up to a certain standard before graduation, and it is for the university to set the standard, a matter with which I see no ground here to interfere with. 20.Third, AR13.2(i) clearly refers to “any three enrolled semesters”. Nothing in the AR would give any impression that “any three enrolled semesters” would mean “any enrolled semester” after a decision not to terminate the student’s study. Such broadened meaning should not be accepted because (1) this is not the natural and ordinary meaning of AR13.2(i) (in particular, the word “any”) in the context and purpose: see Loh Ming Yin v Hong Kong Examinations and Assessment Authority [2020] 6 HKC 565 at §303; (2) such meaning would be illogical because usually, once there were three or more such semesters, the student’s study would be terminated and there would not be any chance to talk about further counting or discounting of the previous semesters; and (3) such meaning would be absurd in a situation where the student, having been spared from termination of study despite three enrolled semesters with SGPAs of less than 1.70, and having only two semesters left before the graduation, could have these remaining semesters with SGPAs of less than 1.70, totalling 5 such semesters in his whole degree, would have no consequence, and this would be absurd in the sense that the purpose of ensuring a certain standard could be defeated. Further, the Applicant’s submissions that the 2024 Review Decision would mean that previous three enrolled semesters were not counted damage the Applicant’s own case – since the previous three enrolled semesters were not counted, and nothing in the 2024 Review Decision said that the previous three enrolled semesters would not be counted or had been spent, given the word “any” in AR13.2(i), the previous uncounted three enrolled semesters were not spent and could be counted later. 21.Fourth, it was in this context one should understand the 2024 Termination Decision as reviewed upon the 2024 Review Decision. It was clear that the Dean, having considered the matters as conveyed by the Academic Review Committee upon review, exercised his discretion to give “this opportunity” (see §8 above) to the Applicant by allowing the Applicant to continue his study. Textually, when reading the 2024 Review Decision together with AR13.2, this opportunity, in context, clearly means that the Applicant was spared from the consequence of having had SGPAs below 1.70 for three enrolled semesters, but nothing more. Nothing like that the previous SGPAs would not be counted anymore could be read from or into the 2024 Review Decision. If this would mean that the previous SGPAs would not be counted anymore, this would (1) go contrary to the purpose of ensuring that the students would be up to a certain standard before graduation; (2) at odds with the Applicant’s own fair acceptance that the previous semesters were “unused” or “not counted” in the light of the 2024 Review Decision; and (3) not be fair to other students who maintain the records of having less than 3 semesters for which they scored less than 1.70. 22.Fifth, the Applicant submits that counting the previous three semesters has been unfair to him because (1) the AR did not authorise the Dean to consider the previous semesters; and (2) had he known that the previous semesters could be counted, he would have made some better study plans. In my view:-
23.In the circumstances, there is neither unfairness nor ultra vires. 24.The Applicant further submits that the 2026 Termination Decision and the 2026 Review Decision is a double jeopardy. In my view, by AR13.2, it is the cumulative effect of any three semesters with SPGAs less than 1.70 that would empower the Dean to terminate the student’s study. Thus, by its very nature, previous semesters would be considered. 25.The Applicant’s reliance on functus officio is also misplaced – this concept, broadly, means that the decision maker has no jurisdiction anymore after the matter before it has been decided. Here, the fourth semester for which the Applicant scored an SPGA of less than 1.70 was a fresh matter for which CityU had the power to consider, and as explained above, it is the cumulative effect of any three enrolled semesters that would count. The 2026 Termination Decision and the 2026 Review Decision arose from a new, separate matter (namely, the fourth semester SGPA) and has no effect on the 2024 Termination Decision or the 2024 Review Decision. No functus officio is engaged. 26.In the circumstances, the ground set out in the Form 86 and the supporting affirmation has no merit at all. It has no realistic prospects of success. V. OTHER GROUNDS OF JUDICIAL REVIEW 27.In his written submission, the Applicant raises other grounds of judicial review than those set out in the Form 86 and the supporting affirmation. The grounds not stated in the Form 86 are not permitted except for good reason: see Hong Kong Aircrew Officers Association v Director of Civil Aviation, HCAL 51/1999, 28 October 1999 at §9 per Stock J (as he then was). In any events, those grounds are unmeritorious. I shall deal with them briefly. 28.First, the Applicant submits that the 2026 Termination Decision was made without authority because the 2026 Termination Decision was contained in a letter not issued in the name of the Dean and not signed by the Dean. Such submissions are stated to be rejected. The letter was simply to inform the Applicant of the Dean’s 2026 Termination Decision, and the evidence, which I accept, is that the Dean did make the 2026 Termination Decision. The Applicant must also have accepted this because he went on to request a review of the 2026 Termination Decision. There is no merit in this ground. 29.Second, the Applicant submits that there is no record of how the decision makers reached the 2026 Termination Decision and the 2026 Review Decision and on what provisions the Decisions were made. In other words, the Applicant is effectively suggesting that there is lack of sufficient reason. However:-
30.In short, the Applicant, receiving tertiary education, must be able to appreciate the reasons for the Decisions. There is no merit in this ground. 31.Third, the Applicant submits that he had legitimate expectation that the previous semesters should not be counted, and/or that he had no fair notice that the previous semesters would be counted. However, given the meaning of AR13.2 and the 2024 Termination Decision as reviewed upon the 2024 Review Decision, I fail to see why the Applicant would have any such legitimate expectation and why he had no fair notice as alleged. At most, it would be the Applicant’s own subjective wishful thinking that the previous semesters would not be counted. 32.Fourth, the Applicant submits that he also had legitimate expectation that the Academic Review Committee was considering his request for review under AR15.2.9 and he should have been afforded a chance to be heard and entitled to know the Committee’s opinion thereunder, because by an email sent to the Applicant, Professor Wan stated that “Your case is currently under review by the University’s Academic Review Committee”. However, it was not mandatory that the Academic Review Committee would interview the Applicant, and there was no requirement that the Academic Review Committee’s opinion would be conveyed to the Applicant. In any event, it was not said that the Academic Review Committee was considering the matter under AR15.2.9. Instead, Professor Wan may just be saying that it was considering the matter with the assistance of the Academic Review Committee, and at the end of the day, he himself would determine whether there was a prima facie case to refer to the Academic Review Committee. There is, in my view, no clear and unequivocal representation that the matter would be referred to the Academic Review Committee under AR15.2.9. Further and in any event, the Applicant has not pointed out what prejudice (for example, his study would be continued despite the fourth semester for which he scored an SGPA of less than 1.70) he has suffered. There is no merit in this ground. 33.Fifth, the Applicant submits that AR15.2.15 has not been complied with. In compliance, the Applicant submits, the decision thereunder should be conveyed to the Applicant. However, AR15.2.15 has no application in the present case because it concerns an appeal against the Academic Review Committee’s decision made upon the Associate Provost’s referral. In the present case, there was no such referral in the first place, let alone any decision of the Academic Review Committee an appeal could be lodged against. 34.Sixth, the Applicant submits that the system under the AR is biased because under AR15.2.11, the Academic Review Committee would refer the matter back to the Dean who has made the decision to terminate the student’s study. However, in the present case, the Applicant is not alleging that the 2026 Termination Decision and/or the 2026 Review Decision was biased as a result of the system. He cannot, given that Professor Wan did not refer the matter to the Academic Review Committee and thus the matter was not, so to speak, referred back to the Dean. Further, I see good reason for referral of the matter back to the Dean – academic independence within each Faculty or Department. In any event, it is an internal matter of the university with which the Court is slow to interfere. In the present case, in the absence of any actual bias and in any event, AR13.2 is clear in its effect, I see no merits in this bias ground raised by the Applicant. VI. CONCLUSION 35.In the premises, I refuse to grant leave out of time for leave to apply for judicial review, and dismiss the Form 86. It also follows that I refuse to continue and grant any stay of the 2026 Termination Decision and the 2026 Review Decision. 36.For costs, as I explained in 林進傑 對 行政上訴委員會[2025] HKCFI 5525 at §46, the ex parte application for leave to apply for judicial review always takes the risk that the putative respondent would be called upon by the Court for assistance and that the ex parte applicant would be ordered to pay the costs of the putative respondent. It is all the more so in the present case, where, as mentioned in §15 above, the Applicant himself sought a rolled-up hearing in the Form 86. While the Applicant is still a student, I see no reason as a matter of law that the Putative Respondent would have to bear the costs when the Form 86 is dismissed. So, I order that the Applicant shall pay the Putative Respondent costs, summarily assessed at HK$160,000. Whether the Putative Respondent, being a university which is usually expected to give opportunity to its students, would like to enforce the costs order against its former student, and if so, how to enforce the costs order, are matters for the Putative Respondent to decide. 37.It remains for me to thank Mr Wong for his assistance. I should also remark that in his valiant efforts, the Applicant has made every possible submission (some even being remotely meritorious) to pursue his application in order to salvage his study at CityU. This shows that he does care about his study. He deserves a chance from society.
The Applicant appearing in person Mr Anson YY Wong, instructed by Sit, Fung, Kwong & Shum, Solicitors, for the Putative Respondent |
Cases cited in this judgment