Re University of Hong Kong
Read the full judgment text of HCMP 2332/1990 on BabelCite. This High Court CFI judgment was delivered on 4 April 1991.
1. This is a motion by Mrs Jill Spruce (the applicant) for judicial review for an order of certiorari to quash a decision of the University of Hong Kong (the University) its Council, Senate, and Committee on Personnel Matters (the CPM) dated the 26th July 1990 to terminate the appointment of the applicant as a senior lecturer in law. In fact the decision challenged was made by the Council of the University, and not by the other two bodies referred to in the motion.
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HCMP002332/1990 1990, M.P. No. 2332 IN THE SUPREME COURT OF HONG KONG HIGH COURT (MISCELLANEOUS PROCEEDINGS) -----------------
----------------- Coram: Hon. Jones J. in Court Dates of hearing: 14 - 18 January, 27 February - 1 March and 4 - 7 March 1991 Date of delivery of judgment: 4 April 1991 ----------------- JUDGMENT ----------------- Introduction 1. This is a motion by Mrs Jill Spruce (the applicant) for judicial review for an order of certiorari to quash a decision of the University of Hong Kong (the University) its Council, Senate, and Committee on Personnel Matters (the CPM) dated the 26th July 1990 to terminate the appointment of the applicant as a senior lecturer in law. In fact the decision challenged was made by the Council of the University, and not by the other two bodies referred to in the motion. 2. A declaration is also sought by the applicant that the Senate and/or Council of the University was in breach of its statutory duty under s.12(9) and s.2(2) of the University of Hong Kong Ordinance, Cap. 1053 (the Ordinance), by failing to hold an enquiry into the facts of the case thereby rendering the decision invalid. The applicant further claims damages for termination of her appointment 3. Leave for judicial review was granted by Godfrey, J. on the 20th September 1990. 4. The case involves considerations of the powers and duties conferred upon the Council under the Ordinance and the validity of regulations made by Council with regard to outside practice for reward conducted by teachers employed by the University during the course of their employment. Facts 5. The facts emerge from affirmations made by the applicant, Mr M.G. Spooner, the Administrative Secretary of the University and Mrs J.K. Richards, the Senior Assistant Registrar (Staffing) of the University and numerous exhibits. 6. The applicant graduated from King's College London University in 1964 with a First Class Honours Degree in law Before she came to Hong Kong, she taught for 16 years in the Faculty of Law at Bristol University. 7. In 1982, the applicant visited Hong Kong when she saw Professor Evans, the then Head of the School of Law at the University and Professor Willoughby, who was also teaching there, who suggested to her that she would be suitable for employment in the Department and encouraged her to apply for a job so that she could teach evidence. The applicant claims that she was persuaded to apply for employment solely on the basis of an assurance given to her that she could continue to practise as a barrister in Hong Kong, and went on to say that she would not have accepted a post with the University unless she could do so. 8. In February 1983, the University advertised posts for senior lecturer or lecturer in the School of Law, in which the advertisement stated that private practice on a basis agreed with the University is permitted. 9. The applicant made an application for appointment and on the 29th June 1983, the University offered her a position of senior lecturer on probation for three years subject to Terms of Service I which were enclosed with the letter offering appointment. The applicant accepted the terms of employment on the 11th July 1983. 10. The particular edition of the Terms of Service was not stated, but it is not in dispute that the 5th edition which came into force on the 30th June 1983 was applicable at the time when the offer was accepted. The applicant accepted a further offer of employment on probation on the 30th October 1985 for the period from the 1st July 1986 to the 30th June 1987, subject to the same Terms of Service. A substantive offer of appointment, again subject to the same Terms of Service, was accepted by the applicant on the 4th June 1986. 11. By an application dated the 14th November 1983, the applicant applied for permission to engage in outside practice at the bar under Category B in accordance with the Memorandum of Guidance and Regulations Governing Outside Practice by Teachers as agreed by the Council. In the application form, the applicant estimated that she would be engaged in outside practice for six hours per week during office hours and for ten to twelve hours per week outside office hours. The application to engage in outside practice was approved by the acting Dean on the 15th November 1983. 12. On the 23rd January 1984, Professor Evans wrote a memorandum to all teachers in the School of Law setting out guidelines to be observed with regard to outside practice. Attention was drawn to the necessity for compliance with the financial accounting requirements, and a restriction on the time to be devoted to outside practice of not more than 20% with a warning that a failure to observe certain of the regulations would be deemed to be good cause for dismissal. Staff were also informed to submit brief reports to the Head of the department at least once a term concerning their commitments and to resolve any problems that might arise. 13. Professor Evans also wrote a personal letter to the applicant on the 22nd February 1984 reminding her to carry out her outside practice in accordance with the terms of his memorandum of the 23rd January 1984. 14. On the 23rd March 1984, the applicant was requested by the Committee on Outside Practice by Teachers (COPT) to submit her annual report on her outside practice to which she replied with a nil return. 15. In response to another request by the applicant to engage in outside practice, Mr R.C. Allcock, who had succeeded Professor Evans as the Head of the Department of Law, gave permission on the 27th September 1984 on the basis that her practice would not interfere with her teaching commitments, and on the understanding that he would be kept fully informed of the amount of time involved, the nature of the work undertaken, and that reference would be made to the COPT if the work resulted in a significant disruption to or reorganisation of her University duties. Mr Allcock also drew the applicant's attention to claims that had been made during the last academic year by some students to the effect that outside practice was having an adverse effect upon the teaching and availability to students of some members of the staff although such criticisms were not directed against her. Mr Allcock also asked the applicant to meet him at least once a term in order to keep him informed about her outside practice, so that he was in a position to monitor what was being done and ensure that she did not undertake more work than was permissible. 16. Mr Allcock wrote to the applicant with regard to outside practice on the 14th May 1985 stating that the practice adopted by Professor Evans, which he had continued, of requiring general reports at the end of each term was not in strict compliance with the Outside Practice Regulations and referred to Reg.6I(i) which refers to applications being made on a job by job basis. He also adverted to views expressed by some members of the staff that there were some instances of an excessive amount of outside practice which it was his duty to ensure did not happen. In this respect, he considered that an effective way of controlling outside practice would be to require prior approval for each job that a teacher intended to undertake, but had decided not to do so in the case of the applicant provided that she made a full and frank disclosure of her outside practice. 17. On the 1st July 1986, Dr Raymond Wacks was appointed to be the new Head of the Department of Law in succession to Mr R.C. Allcock. 18. In response to a request by the secretary to the COPT of the 2nd February 1987 for a return of earnings that the applicant had received from her outside practice for the period from the 1st April 1984 to the 31st March 1986, the applicant replied on the 13th February 1987 commenting that the forms for completion were not appropriate for her practice and that she had only been practising in 1984 whilst accounts were not available. 19. On the 30th March 1988, a memorandum was sent to all members of the Department of Law by Dr Wacks, reminding them that annual returns for the period from the 1st April 1986 to the 31st March 1987 should have been submitted some time ago. 20. In April 1988, the COPT considered that it was necessary to review the arrangements for outside practice in each faculty of the University, and with regard to the Faculty of Law, it would seek the comments of the faculty before submitting recommendations to the Council. A joint staff meeting of the Department of Law and the Department of Professional Legal Education was chaired by the Dean on the 19th May 1988 when it was agreed that the approval and monitoring of outside practice should be subject to greater scrutiny and that where a teacher had exceeded the acceptable limits for outside practice in accordance with the guidelines, the Head of the department might revoke permission altogether. 21. The applicant forwarded a cheque for $4,703 to the secretary of the COPT on the 30th May 1988 which she claimed was the largest sum which could possibly be due to the University up until the 31st March 1988. 22. Until 1988, the applicant had done some of her teaching on Saturday mornings, but permission for this time to be used was cancelled by Dr Wacks in September 1988. However, the applicant continued to make arrangements for lectures to be held on Saturday mornings which resulted in correspondence between her and Dr Wacks that became acrimonious. In her letter of the 30th September 1988 to Dr Wacks, the applicant contended that he was attempting to prevent her from pursuing her outside practice which amounted to constructive dismissal from her post at the University in respect of which complaint she threatened to sue the University for damages. 23. This led to a warning from Dr Wacks in his letter of the 13th October 1988 that her approval for outside practice would have to be reconsidered unless she gave a written undertaking that no more than one day per week would be devoted to such practice in the future and that advance notice would have to be given in respect of court appearances. Further correspondence ensued between the applicant and Dr Wacks with regard to the rescheduling of tutorials and cancellation of lectures. 24. A meeting of the COPT was held on the 12th October 1988 in which it was resolved that firm action should be taken to enforce the Outside Practice Regulations and that failure to comply with the requirements of paragraphs 6I(i) and 6II(vi) would be deemed to be good cause for termination of appointment and that a letter should be sent to the applicant and five other teachers informing them of the position. 25. All members of the faculty were informed by Dr Wacks and the acting Head of the Department of Professional Legal Education of this decision. 26. Mr Spooner wrote to the applicant on the 26th October 1988 informing her that the COPT had stated that in view of her failure to fill out the forms previously requested proceedings for termination of her appointment would be instituted and the matter referred to the Vice-Chancellor under the Council's procedures for Termination of Appointment for Good Cause. It is, however, conceded by the University that this letter was sent in error. 27. Matters came to a head when Dr Wacks wrote to the applicant on the 27th October 1988 after he had received information that the applicant had appeared in court for sixteen consecutive days without his knowledge and consent. The letter refers to the cancellation or rescheduling of lectures and tutorials without notification to Dr Wacks in advance, the holding of classes on Saturday mornings and appearances in court without the knowledge or consent of Dr Wacks. As Dr Wacks received no reply to this letter, he wrote to the applicant again on the 1st November 1988 which repeated the contents of the previous letter, together with details of some further allegations. By this letter, Dr Wacks withdrew the applicant's permission to engage in outside practice. The full contents of this letter read as follows :-
28. The applicant was informed by a letter from Mr Spooner dated the 2nd November 1988 that as she had failed to comply with paragraph 6II(vi) of the Memorandum of Guidance and Regulations Governing Outside Practice by Teachers by failing to submit returns, this constituted prima facie evidence for the termination of her appointment, the Vice-Chancellor had decided to refer the matter to the CPM to investigate the facts on behalf of the Senate and the Council. By a further letter to the applicant from Mr Spooner dated the 5th November 1988, the applicant was informed that the Vice-Chancellor had considered the allegations made by Dr Wacks in his letter of the 1st November 1988, which he had decided constituted a prima facie case for termination of her appointment and had also referred this matter to the CPM to investigate the facts on behalf of the Senate and the Council. 29. Subsequently, the applicant requested full particulars of the allegations made against her which were later supplied by the University. A request made by the applicant's solicitors to the Vice-Chancellor in January 1989 to reconsider the exercise of his discretion in respect of the termination procedures or to make the University's position clear was refused after reconsideration on the 13th February 1989. 30. The meeting of the CPM to enquire into the facts of the two complaints was held on the 8th March 1989 and was attended by the applicant and her legal representatives. The report of the CPM was submitted to the Vice-Chancellor with a finding that most of the allegations had been substantiated. After considering the report, the Vice-Chancellor referred it to the Senate with a recommendation that it act through a sub-committee. The Senate accepted this recommendation at a meeting on the 2nd May 1989 and a sub-committee was set up for this purpose. The Senate sub-committee reported to the Senate in December 1989 that it was unable to advise on the CPM report in respect of the two complaints for reasons that I shall return to later in this judgment. 31. Meanwhile, a third complaint had been made by Dr Wacks to the Vice-Chancellor on the 11th December 1989 that despite his withdrawal of permission for the applicant to engage in outside practice on the 1st November 1988, she had continued to do so and had appeared as counsel on five occasions in the High Court during 1989. The Vice-Chancellor referred this complaint to the CPM on the 29th December 1989. The hearing of the CPM in respect of the third complaint took place on the 19th April 1990 when oral submissions were made by the applicant. 32. The report of the CPM made on the 12th June 1990 concluded that the applicant's subsequent appearances in court, which were admitted, amounted to a breach of her contract of employment. After considering this report, the Vice-Chancellor referred it to the Senate with advice that the second CPM's report be referred to the Senate sub-committee. The two reports of the CPM were then considered by the Senate sub-committee on the 14th and 19th June 1990 when it concluded that good cause had been demonstrated and made a recommendation that the applicant be dismissed. 33. At an extraordinary meeting of the Senate on the 26th June 1990, the Senate by a vote of 54 to 32 adopted the sub-committee's report as its advice to Council with a recommendation that Council should invite the applicant to attend to state her case. 34. At a meeting of the Council on the 28th June 1990, it was resolved that the applicant be invited to submit a written statement instead of an oral submission upon the report. 35. The Council resolved at a special meeting held on the 26th July 1990 to terminate the appointment of the applicant under s.12(9) of the Ordinance and she was informed of this decision by a letter from Mr Spooner on the 27th July 1990 and was awarded four months' salary in lieu of notice. Grounds 36. In support of the application for leave thirteen grounds were raised by the applicant to which four additional grounds were added at the hearing before me, making a total of seventeen. The grounds are as follows :-
Contract of employment 37. The applicant accepted the University's offer of employment as a senior lecturer in law on the 11th July 1983 subject to Terms of Service I. It was contended on behalf of the University that the 5th edition of the Terms of Service applied at the outset of her employment although the particular edition of the Terms of Service is not referred to in the offer of employment dated the 29th June 1983, whilst the 5th edition was not introduced until the 30th June 1983. However, the offer by the University for the applicant's probationary employment to be extended dated the 25th October 1985 refers to the Terms of Service as those set out in the 5th edition. The applicant maintains that the 5th edition did not apply to her, but I am quite satisfied upon the evidence that it did. However, even if the 5th edition did not apply, it has no significance for the two following clauses were identical to those set out in the previous edition. The first is clause 2 which reads :-
"The second clause is Clause 4(e)(i) which reads -
38. Neither the applicant nor the University was able to produce the contract between the parties which prompted a challenge by Mr Smith who appeared for the applicant that the contract had been signed on behalf of the University or that any of the specific terms relied upon were established. However, I do not accept this submission which was highly improbable and unrealistic. 39. He went on to deny the existence or validity of the Outside Practice Regulations to support the contention that there had been a unilateral variation of the terms of the contract that the applicant could engage in outside practice for there was no provision in the contract to exclude the oral terms that had been agreed. Mr Smith submitted that the letter of the 29th June 1983 from the University to the applicant offering her the terms of appointment subject to terms of service was not capable of excluding all other terms and that, in any event, the clause ought to be construed contra proferentem. It was also contended on behalf of the applicant that she was employed specifically on the basis that she could devote an appreciable amount of her time to outside practice although there was no discussion as to the exact amount of time, but that it was to be arranged so that it did not prejudice her students. 40. In an alternative argument Mr Smith submitted that if the facts do not constitute a binding contractual term, they nevertheless give rise to either a licence to practise or to a reasonable expectation that the applicant would be permitted to do outside practice, see Attorney General of Hong Kong v. Ng Yuen Shu [1983] 2 WLR 735. 41. Mr Chang, counsel on behalf of the University, submitted that by virtue of the contractual provisions no outside practice would be permitted except in accordance with such regulations as the Council might make from time to time provided that such practice was not carried on to the detriment of the performance of her University duties. He argued that this provision has always applied and that there has been no unilateral variation of the terms by the University. He further submitted that the Outside Practice Regulations are incorporated into the contract by reference. Provisions of the University of Hong Kong Ordinance 42. It will now be convenient to set out details of the provisions in the Ordinance which are relevant to this case. 43. Section 7 provides for the setting up of a Court, Council and Senate with their constitutions, powers and duties. The Court is the supreme governing body of the University whilst the Council is the University's executive body that deals with the administration of the property and manages the affairs of the University. The Senate is concerned with matters that relate to education in the University. Section 11 provides for the establishment of committees and reads as follows : -
Section 12(9) provides for the appointment and termination of the appointment of any teacher and reads as follows :-
Section 12(11) provides for an appeal to lie to the Chancellor from any decision of the Council relating to the termination of the appointment of a teacher. It is common ground that the applicant did not appeal against the Council's decision.
Section 13(1) provides that subject to the Ordinance, the University shall be governed in accordance with the provisions of the statutes. 44. The following statutes of the University set out in the Schedule are also relevant. Statute XII deals with the teachers of the University and s.2 of this statute reads :-
Statute XIV is concerned with procedure generally and s.2 provides, inter alia, that the Council and Senate and any committee shall determine and may make rules for the time, place and procedure of their respective meetings. The composition of the Council is set out in Statute XVIII and consists of a large body of members of the University including the Vice-Chancellor and the Dean of each Faculty. The powers of the Council are set out in Statute XIX, the relevant provisions of which are as follows :-
45. The composition of the Senate is set out in Statute XXII. The Senate also consists of a large number of members of the University including the Vice-Chancellor, who is the Chairman and also the Dean of each Faculty. The powers of the Senate are set out in Statute XXIII and includes the following :-
Statute XXIV deals with the teaching departments and section 2 provides for the Head of the Teaching Department to be responsible to the Faculty for the organisation of teaching in the department in consultation with the Dean of the Faculty. Outside Practice Regulations 46. Acting under the powers conferred by s.3(1)(g) of Statute XIX, the Council approved Regulations Governing Outside Practice on the 29th October 1981 which came into effect on the 1st April 1983. The Regulations appear on pages 68 - 73 of the Staff Manual (Terms of Service I), exhibit JS-27. The Regulations set out two categories of outside practice that are permitted with details of approval requirements and financial and reporting requirements. In particular, under the Approval Requirements, the following paragraphs are relevant :-
47. Mr Smith submitted that there are no minutes that relate to the introduction of any regulations and, as I have said, has challenged that there are any regulations in existence. He further contended that there was no machinery whereby any teacher could possibly know of such regulations as they came into force and no evidence that at any time any regulations or purported regulations were published in such manner as to come to the knowledge of any teacher. 48. Mr Chang on the other hand contends that because of the contractual provision in the Terms of Service subjecting outside practice to Regulations made from time to time by Council, the regulations became incorporated in the contract. Indeed, the applicant has acknowledged in her letter of the 8th November 1983 when applying for approval to engage in outside practice that she was required to do so under the Terms of Service. 49. The nub of Mr Smith's submission however, is that the regulations do not form part of the subordinate legislation to the Ordinance. However, I accept the submission that was made by Mr Chang that the powers given by the Ordinance to the Council to administer the affairs of the University is a wide one and in the nature of a permissive power, so that it is not necessary to make regulations in a formal sense by way of subordinate legislation. The Council clearly had power to make the regulations under s.3(1)(g) of Statute XIX. Upon the evidence, the applicant was fully aware of the existence of the regulations and knew where to find them. As a result, I do not accept the submission made on behalf of the applicant that the regulations are invalid or ultra vires. Committee on Outside Practice by Teachers 50. The COPT was set up by Council on the 25th February 1982 to advise the Council on matters of policy in respect of outside practice and to implement arrangements for the control of outside practice by teachers as laid down by the Council in its Memorandum of Guidance and Regulations Governing Outside Practice by Teachers, to recommend amendments to be made as necessary and to report annually to the Council on the outside practice by teachers. 51. The staff meeting that was held on the 19th May 1988 arose as a result of dissatisfaction expressed by certain members of the staff with regard to outside practice and resulted in the decision that the practice be rigorously controlled by the Head of the Department with a warning that the continuation of outside practice without the consent of the Head would be a cause for termination of a contract. 52. It was argued on behalf of the applicant that the COPT by this decision was seeking to change the regulations on Outside Practice and that once permission had been granted, the Head of the Department had no power to withdraw such permission. However, it is apparent from the evidence that the COPT was not changing the regulations but was taking steps to implement them after full consultation with the teachers of the Department of Law and the Department of Professional Legal Education. Further, the duty of implementing the regulations was placed upon the Head of the Department for he is responsible to the Faculty for the organisation of teaching in his department under s.2 of Statute XXIV. 53. It was argued on behalf of the applicant that in any event, reasonable notice of the withdrawal of permission by Dr Wacks should have been given. However, I do not consider that the applicant was entitled to any notice when she was in breach of her terms of service for her entitlement to practise was dependent upon compliance with the conditions imposed by the regulations. Procedure for termination of appointment 54. The CPM was set up by the Council on the 27th June 1985 with the following power :-
55. Procedures for the termination of an appointment for good cause were approved by the Council in June 1986. 56. This procedure provides for the Vice-Chancellor, in his absolute discretion, to initiate proceedings for the termination of a teacher's appointment for good cause which may be initiated either where the Vice-Chancellor has received allegations about he conduct of a teacher, whether or not they are accompanied by recommendations for the dismissal of that teacher or where he himself believes for whatever reason that there is a prima facie case to be investigated. If the Vice-Chancellor decides that there is such a case, he is required to refer the matter to a committee which shall investigate the facts on behalf of the Senate and the Council. 57. The committee is empowered to investigate the case in whatever way it seems appropriate in the circumstances and the committee may if it wishes, call for statements in writing in relation to any of the circumstances of the case, to call witnesses to answer questions, and to call the appointee concerned to answer questions. The appointee shall have the right to receive a copy of any statement in writing which forms part of the evidence before the committee, to make statements to the committee in writing or in person, or both, in response to the written evidence or in relation to the general circumstances of the case or both and to be present when the committee asks questions, of witnesses and to ask questions of those "witnesses, and in attending meetings of the committee to be accompanied by another member of the University or a legal representative. The committee is required to prepare a detailed report on its findings on the facts of the case but shall not make any recommendation on whether the appointee's appointment be terminated. The report will then be submitted to the Vice-Chancellor who, if the enquiry has established facts which prove to the Vice-Chancellor's satisfaction that the allegation is demonstrably false, no further action shall be taken, but otherwise, the Vice-Chancellor shall forward the report to the Senate which may act through a sub-committee if it so wishes. After considering the report, the Senate shall forward it to the Council with a recommendation that if good cause has been shown, the teacher be dismissed, or that if good cause has been shown but there are mitigating cirumstances the teacher should not be dismissed, or if good cause has not been demonstrated to its satisfaction, the teacher should not be dismissed. 58. If a recommendation is made by the Senate that good cause has been shown, the Council shall then determine whether or not the appointment should be terminated. 59. Mr Smith submitted that the Council had no power to delegate its function of due enquiry to the CPM. In support of his submission, he drew my attention to Vine v. National Dock Labour Board [1957] AC 488 where the plaintiff, a dock labourer employed by the National Dock Labour Board, was dismissed from his employment after a hearing by a disciplinary committee appointed by the local dock labour board under a scheme set up by the Dock Workers (Regulation of Employment) Order 1947. It was held that the plaintiff's dismissal was invalid as the local Dock Labour Board had no power under the scheme to delegate its powers to a disciplinary committee. In another case Osgood v. Nelson [1982] LR5 636 it was held that the appointment of a committee to take evidence and make a report was not in itself a delegation of authority. However, the facts of the instant case reveal that there was no delegation by the Council of its powers to terminate the appointment for good cause under s.12(9). 60. The delegation to the CPM was validly made under s.11(3) of the Ordinance for the purpose of the committee making an enquiry into the facts and to report its findings to the Vice-Chancellor to determine whether a prima facie case had been established. If the Vice-Chancellor was of the opinion that there was a prima facie case, he will submit the report to the Senate for the Senate's advice on the findings of the CPM. The Senate in turn has power to delegate under the same section to any ad hoc group or committee to assist the Senate in formulating its advice to Council. The Council, upon receiving the advice from the Senate, will then come to a decision as to whether the appointee's contract should or should not be terminated. The First Complaint - Failure to Submit Returns under Para.6II(iv) of the Memorandum of Guidance and Outside Practice Regulations 61. The first complaint relates to the applicant's failure to provide returns for the outside practice year ending 31st March 1984 onwards. The particulars of the complaint are set out in the letter of the COPT dated the 7th November 1988 which reads :-
62. The COPT had reminded the applicant on the 23rd March 1984 to submit returns by the 16th April 1984. A further request was made on the 2nd February 1987 to which the applicant replied on the 13th February 1987 when she claimed it was not possible to make returns at the time for accounts were not available and the forms to be submitted were not appropriate to her practice. 63. On the 30th March 1988, a reminder was sent by the Head of Department to all members of the Department of Law that returns for the period 1st April 1986 to the 31st March 1987 should be immediately submitted to the Head for transmission to the secretary of the COPT. At about the same time, the Head of Department reminded the applicant of her obligation to send in periodic reports as distinguished from the annual returns of her outside practice. In May 1988, the applicant was informed that the accounting period of her outside practice must be arranged to coincide with that of the University Outside Practice Year and that the necessary annual return should be made without delay and without any necessity to name her clients. The applicant was asked to send the completed returns to the COPT through the Head of Department and the University said it was prepared to accept returns on actual receipts as distinguished from an accrual basis. The applicant, however, did not make the required returns although she said that she would endeavour to arrange her financial year to coincide with that of the University's fiscal year, and sent the cheque for $4,703 to which I have already referred. No figures to support this figure were, however, supplied by the applicant. A further letter was addressed to the applicant on the 14th September 1988 requesting accounts and returns, but it was not until the 5th October 1988 that the applicant replied to the effect that she had made her final return which represented all payments due to the University up to the 31st March 1988. She did not supply any further information. It was therefore alleged by this complaint that the applicant was in breach of the regulations in failing to furnish returns for the period from 31st March 1984 onwards up to and including the year ending the 31st March 1988. 64. It is not in dispute that the applicant did not submit annual financial returns to the COPT although she did make a nil return on the 23rd March 1984 for the period from January to 31st March 1984. In view of her breach, the applicant was informed that it constituted a breach of para. 6II (vi) of the Memorandum of Guidance and Outside Practice Regulations which constituted prima facie evidence amounting to good cause for termination of her appointment. 65. An argument was raised by the applicant that the University did not call for the returns at the appropriate time, the 31st March, so that it could not validly call for returns retrospectively, but there was no merit in this submission which was not pursued. The Second Complaint - Withdrawal of Permission to Engage in Outside Practice 66. The particulars of the second complaint are set out in the letter from Dr wacks dated the 1st November 1988 to which I have already referred. 67. The first and second complaints were heard by the CPM on the 8th March 1989 which considered statements made by the applicant and also answers to questions put to her by the committee. 68. The outside practice work that had been complained of by the Head related to her appearance in a High Court trial that lasted for sixteen consecutive working days from the 10th October to the 1st November 1988. Although the trial began on the 10th October, in none of her letters to the Head of Department did she mention that any of the cancellations or rescheduling of lectures that she made during this period arose as a result of her appearances in Court. In fact an excuse was put forward by the applicant, and by her daughter on her behalf, to her students that she was ill at the time, which clearly was untrue. 69. In its report to the Vice-Chancellor, the CPM stated that they were throughout advised by Mr C.J. Bonsall of Johnson Stokes & Master, the University's solicitors, who attended all the meetings. The committee state that they asked a few questions of the applicant, but called no witnesses as the written submissions were comprehensive. The committee directed its enquiry to the following matters in paragraph 9 of the report :-
The findings of the Committee on the above matters are as follows:-
70. The Vice-Chancellor, after considering that a prima facie case had been established, referred the report to the Senate which set up a sub-committee to make recommendations, but this sub-committee later aborted itself in December 1989 on the grounds that they had received certain documents which although amounting to no more than comment, nevertheless considered that it might have constituted new evidence. In view of these procedural defects, the sub-committee decided that it would therefore be unable to advise the Senate on the report of the CPM. 71. However, before the sub-committee came to this decision, a third complaint had been made by Dr Wacks. Third Complaint - The Applicant continued to engage in Outside Practice 72. The third complaint is set out in Dr Wacks' letter to the Vice-Chancellor dated the 11th December 1989 in which it is alleged that the applicant continued to engage in outside practice by appearing in court on at least five occasions in the High Court between June and November 1989 notwithstanding the Head's approval required under the Outside Practice Regulations had been withdrawn. It is not in dispute that the applicant had not sought fresh approval either generally or for specific jobs, but did in fact appear in court on the occasions referred to. 73. The Vice-Chancellor determined that there was a prima facie case and referred the complaint to the CPM on the 29th December 1989. 74. On the 22nd February 1990, Council decided that all three complaints should be dealt with together instead of individually and requested the Senate to proceed in the same manner. 75. The second CPM received submissions from the applicant on the 23rd January 1990 and also received oral submissions which were reduced to writing. 76. The second CPM in its report dated the 12th June 1990 stated that whilst it did not, in view of its findings, consider certain matters introduced by the applicant as relevant, the committee was concerned to ascertain certain facts in case they would be of future assistance to the Senate and the Council. At the hearing before the CPM, the applicant did not deny that she had appeared in court on the occasions in question. 77. Whilst the applicant stated that she was not aware of the contents of the regulations in force on the 29th June 1983, the CPM did not consider this issue to be relevant for it is those regulations that are in force from time to time made by the Council that are relevant. The CPM also found that there was no unilateral attempt to alter the terms of the contract and emphasised that paragraph 6I(i) of the regulations has always existed so that the requirement for permission to engage in outside practice applied before the commencement of the applicant's employment. 78. The CPM also made reference to the fact that in para.6I(i) of the regulations, there is an express power conferred upon the Head to grant approval to a teacher to undertake outside practice, but there is no express power to withdraw permission. However, the CPM considered that where blanket permission had been given, it must be capable of being withdrawn so that it no longer authorizes a future commitment to engage in new work. The CPM concluded that If express power is given to the Head to grant permission, then it follows that the Head should have the implied power to withdraw that. permission. The CPM found that the Head in his letter of the 1st November 1988, told the applicant that because of her conduct she no longer had blanket permission to engage in outside practice. However, the CPM did not consider that the Head had imposed a general bar on doing outside work which would, in any event, only be able to be imposed by Council on a recommendation from the COPT. The Head did not say that she could not have permission for a specific job. The CPM also found that clause 4(e)(i) was binding upon the applicant, so that there was a breach of contract by engaging in outside practice so as to interfere with her University duties. Each set of the regulations imposes the requirement of prior approval from the Head and the CPM found that where blanket permission had been given, it can be withdrawn so that it no longer authorizes future commitment to engage in new work, which was the content of the letter from Dr Wacks of the1st November 1988. 79. The issue of the motive of Dr Wacks in withdrawing permission was raised, but the CPM did not consider this to be a relevant matter having regard to the findings. Reference was also made to the applicant's submission that she had been treated differently by Dr Wacks from any other member of the department and had alleged that she had been victimised. She raised this matter in relation to returns from outside practice, Saturday teaching and alterations of the teaching time table. However, the issues of teaching on Saturday and altering the time table were not strictly relevant to the complaint. Although the CPM was concerned to establish what correspondence had ensued between Dr Wacks and members of the department in relation to outside practice, this was done for the assistance, if necessary, of the Senate and Council. The CPM therefore wrote to Dr Wacks and received in response copies of correspondence which he had had with other members of the department together with memoranda issued generally in the department. Although the CPM considered that these matters were not strictly relevant, nevertheless, they concluded that Dr Wacks` had not singled out the applicant for special treatment either in respect of outside practice or in respect of instructions with regard to teaching on Saturday mornings and alterations to the time table. 80. Further complaints alleged by Dr Wacks that the applicant had been in serious dereliction of her administrative duties relating inter alia to her failure to attend a meeting of the Merrill Lynch Scholarship Selection Committee which the applicant had agreed to attend, and correspondence between Dr Wacks and the secretary of the Hong Kong Bar Association were also regarded as irrelevant to the complaint. 81. The conclusions of the CPM as set out in their report are as follows :-
82. After considering the second CPM report, the Vice-Chancellor referred it to the Senate on the 13th June 1990. The Senate sub-committee was reconstituted by the Senate on the 20th June 1990 with the same members that had constituted the first sub-committee. 83. In respect of the first complaint, the sub-committee found that the applicant was acting improperly and contrary to the regulations in failing to provide proper returns relating to her outside practice over an extended period which was identified by the CPM in its first report at paragraph 12 to be from the 1st April 1984 to 31st March 1988. However, although the sub-committee concluded that good cause had been demonstrated, there were mitigating circumstances having regard to the long period of time when no reports were requested by the COPT. In respect of the 2nd and 3rd complaints, the sub-committee found that good cause had been demonstrated and there were no mitigating circumstances. 84. In its recommendation, the sub-committee made reference to the applicant's request for the matter to be concluded as quickly as possible and within the month of June with the result that the committee did not have a further opportunity to invite the applicant to address them. Accordingly, as the Council had to make the final determination as to whether any good cause existed for termination, a recommendation was made that Council invite the applicant to attend before it to make any further submissions which she wished to take into consideration. The sub-committee concluded that there was an overall pattern of behavior by the applicant which constituted neglect of her duties as a University teacher and the advice that was submitted to the Senate was to advise Council that good cause had been demonstrated to the effect that she had neglected her duty and that there being no mitigating circumstances, the applicant should be dismissed. 85. On the 26th June 1990, the Senate adopted the report of the Senate sub-committee as its advice to the Council after a vote of 54 in favour with 32 against. 86. A meeting of Council was held on the 28th June 1990 at which the Senate's advice was received. The Council decided at the meeting that despite the advice to the contrary of the Senate and its sub-committee, it did not wish to receive an oral submission, but invited the applicant to submit a written statement which she might wish to make in connection with the findings of the Senate sub-committee. The applicant submitted a written submission in response to this invitation. 87. A special meeting was then convened by the Council for the purpose of deciding whether there was good cause for termination of the applicant's appointment which was held on the 26th July 1990. After the matter had been considered, the Council decided that good cause for the termination of the applicant's appointment existed arising from the facts as determined by the enquiries which showed a pattern of behavior that constituted such misconduct in the performance of her duties as a University teacher so as to render her unfit to continue in office. It was therefore resolved to terminate her appointment under the provisions of s.12(9) of the ordinance with immediate effect, with a payment of four months' salary in lieu of notice. The Wacks File 88. A great deal of argument was directed to the applicant's complaints with regard to what has been called the Wacks file. The file came into existence on the 4th July 1989 in response to the applicant's submissions to the CPM which contained allegations of victimisation, harassment and imputations of improper conduct by Dr Wacks. A substantial part of the file deals with Dr Wacks' comments upon those allegations. The file also contains correspondence and other documents that had already been disclosed, together with correspondence relating to other members of the staff. However, having perused the file, I do not consider that it contains any prejudicial material that would have affected the applicant's case. Further I am satisfied that Dr Wacks was entitled to make comments on the allegations that were made against him by the applicant. 89. In any event, the Wacks file was not in existence at the time of the first CPM hearing nor was it placed before the second CPM, the second Senate sub-committee, or the Senate when it met to consider the submissions and voted to adopt the recommendations of the reconstituted Senate sub-committee. Further, the Wacks file was not before the Council when it met to consider whether good cause existed for the termination of the applicant's appointment. The Wacks file in fact was only placed before the first Senate sub-committee which later aborted itself. Neither Dr Wacks nor any member of the Senate sub-committee, nor the Vice-Chancellor participated in the Senate's vote or in the meeting of the Council. 90. Objection has been taken by the applicant to the constitution of the Senate sub-committee on the grounds that the members of the reconstituted Committee were the same as those appointed to the first Senate sub-committee. However, at this time, the second CPM had already enquired into the third complaint. The applicant chose to admit the specific acts alleged, but continued to make a personal attack upon the Head with regard to his actions and motivations such as harassment. By her actions in insisting that Dr Wacks should be required to produce correspondence with other lecturers, she allowed these matters to be raised after the first Senate sub-committee had aborted itself. 91. As I have said, the second CPM did not have the Wacks file, but on the 3rd May 1990, in response to the applicant's request, it called for information from Dr Wacks on specific matters relevant to the points raised. Dr Wacks supplied this information on the 31st May 1990. 92. However, these matters were not considered to be relevant by the committee, but were only included as part of the report in case they may have been of future assistance to the Senate and Council. 93. The complaints made about the Wacks file were not justified. Good Cause 94. Good cause as defined in s.2(2) of the Ordinance means the inability to perform efficiently the duties of the office, neglect of duty, or such misconduct, whether in an official or a private capacity as renders the holder unfit to continue in office. 95. Whilst the Senate came to the conclusion that the applicant had neglected her duty in order to constitute good cause, the Council in concurring with the Senate that good cause had been demonstrated, formed the opinion that the facts determined by the enquiries, constituted such misconduct as rendered the applicant unfit to continue in office. 96. Mr Smith has submitted that the three heads, inability to perform efficiently the duties of the office, neglect of duty, or misconduct, are separate heads and that the Senate's finding of neglect only amounted to a provisional view for the applicant had not been given an opportunity of an oral hearing. Accordingly, he argued that the finding was made on the basis that the Council should have given the applicant an oral hearing for the matter to be properly ventilated. Further, no consideration was given as to whether the applicant's conduct could amount to misconduct or render her unfit to continue in office. However, on behalf of the University, it was submitted that neglect of duty and misconduct, are not mutually exclusive terms and if and insofar as misconduct is distinguishable from mere neglect, and requires deliberate acts, that element was clearly brought home to the applicant. The allegation of deliberate non-compliance had been clearly spelt out to the applicant so that she knew at the outset that the subject matter of the enquiry was whether there was on the facts good cause for dismissal, and not some lesser matter as defined in the Ordinance. 97. Whilst the primary facts alleged against the applicant are not in dispute, the applicant contends that she was never given notice of the allegations against her with regard to her conduct being described as a pattern of behaviour that amounted to a finding that she was unfit to continue in office. This argument has arisen as a result of the applicant's construction of the meaning of "good cause" which has been submitted, should be interpreted under three separate heads. Accordingly, there was an inconsistency between the view expressed by the Senate that the applicant had neglected her duties, whilst the Council came to the conclusion that the applicant's conduct amounted to misconduct. However, I accept the submission made on behalf of the University that the description of neglect of duty and misconduct are not mutually exclusive terms and are not to be treated separately. The Senate was quite entitled to infer from the evidence that there had been a pattern of behavior by the applicant that constituted a neglect of her duties to amount to good cause for termination of her appointment. The Council in turn considered that the conduct amounted to misconduct which also amounts to good cause for termination. Both the advice of the Senate and the opinion of the council reached the same conclusion, but were expressed in a different way. Due Enquiry 98. The applicant further contested the submission with regard to the Senate's finding that there was an overall pattern of behavior which constituted neglect on the grounds that the Senate only came to a provisional determination having regard to their recommendation that the Council would afford the applicant an oral hearing. Apart from the Council's failure to allow the applicant to appear in person, an issue was as I have said taken with regard to the procedures adopted by the Council in respect of its delegation to the CPM to enquire into the facts and the subsequent referral to the Senate who in turn acted through its own sub-committee. The question of due enquiry was discussed in General Medical Council v. Spackman [1943] AC 627 where Viscount Simon, L.C. had this to say at pp.634-636 :-
99. A helpful passage appears in the opinion of Lord Wright in the same case at p.640 which reads :-
Mrs Richards and Mr Bonsall 100. The roles of Mrs Richards and Mr Bonsall were criticised by the applicant. 101. Mrs Richards is, as I have said, the Senior Assistant Registrar (Staffing) of the University and was the secretary of the CPM and the Senate sub-committee. She was responsible for the administration for the termination proceedings instituted against the applicant and in this capacity, handled all the correspondence between the University, the applicant and her legal advisers from the 24th November 1988. She wrote to the applicant from time to time in her various roles on behalf of the University administration and in her capacity as secretary of the CPM and Senate sub-committee. It was alleged, on behalf of the applicant, that Mrs Richards took part in the proceedings when she was not entitled to do so and on one occasion made a hostile reference to the applicant when she told the Senate that the applicant "had had an opportunity to put her case and that she had a great big file to prove it". 102. Mr Bonsall, the solicitor with Johnson Stokes & Master was instructed to advise the University on matters of law and procedure. In this capacity, he attended all the meetings of the CPM. At the meeting on the 19th April 1990 at the request of the Chairman of the CPM prior to the commencement of the meeting, he asked the applicant some questions about the Terms of Service I (5th Edition) in the presence of everyone concerned. Mr Bonsall also provided a written opinion to the University on the applicability to the applicant of the Memorandum of Guidance and Regulations Governing Outside Practice which was later submitted to the Senate sub-committee. Mr Bonsall attended all the meetings of the Senate sub-committee and one meeting of the Senate on the 6th February 1990 to advise on the Senate's role in the case. However, he did not attend the meeting of the Council on the 26th July 1990. 103. No objection was at any time taken by the applicant to the presence of Mr Bonsall before the proceedings were commenced. Mr Bonsall's role was solely that of legal adviser. 104. Neither Mrs Richards nor Mr Bonsall took part in the decision making process whilst the complaint made concerning the remark made by Mrs Richards could have had no effect upon the proceedings. 105. It was quite clear upon the evidence that the applicant's complaints concerning Mrs Richards and Mr Bonsall were entirely without foundation. 106. The Council in this case is not a court of law and is able to determine its own procedure and whether oral or written evidence should be given. It is an informal tribunal with inquisitorial powers as distinguished from the accusatorial powers that apply in a criminal trial. As a result, the strict rules of evidence do not apply. It is therefore unnecessary for the Council to have a prosecutor or complainant to lay formal charges. The complaint that the applicant was not given proper particulars of the charges against her in this case is unfounded for she was, supplied with full details. Quite clearly, she was aware of the charges that she had to meet. "Due enquiry" means that the applicant must be given a fair opportunity of meeting the allegations. The Council was not bound to grant the applicant an oral hearing and their decision to receive a written submission cannot be impeached. 107. Having regard to the large number of members who serve on the Council, it would be impracticable to expect all its functions to be dealt with by the full Council. Accordingly it was within the power of the Council to delegate the enquiry into the facts to the CPM and thereafter to seek the Senate's advice before coming to its own decision. Whilst these powers were delegated, the Council did not delegate its decision making function as to whether good cause existed for termination of the applicant's contract. The decision to terminate was made by the Council. Natural Justice 108. The applicant has contended that she has been treated unfairly in the Wednesbury sense, see Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223, on the grounds that the Council had acted on material placed before it after the facts had been determined by the two CPM enquiries, and after giving a final opportunity to the applicant to make written representations whereas she had hoped that she would be given an oral opportunity to do so. The applicant argued that the Council formed its opinion as to whether good cause existed for dismissal upon the advice received from the Senate and therefore merely rubber-stamped a decision that had already been made. This submission was made on the grounds that no specific findings of fact nor reasons were given, nor any attempt by the University to particularise the basis upon which the Council acted. However, the Council did give reasons and I am unable to accept the submission for the applicant that the Council merely acted as a rubber-stamp. The slur that was made upon the integrity of the Council by acting as a rubber-stamp in carrying out its statutory duties is but one example of the poverty of the arguments that have been canvassed on behalf of the applicant. The Council is, like the Senate, a professional body with a wide cross section of academic opinion and in my judgment, it is irresponsible to conclude that the members would come to a decision of such importance in the cavalier manner suggested by Mr Smith. The procedures that were set up for the investigation into the conduct of the applicant were neither improper nor illegal. 109. It is apparent from the evidence that all the bodies concerned treated the applicant with the utmost fairness and provided her with every opportunity to meet the allegations that were made. In fact, it can be justifiably said that the University leant over backwards to ensure that she was treated fairly. The applicant, however, has confused the procedure adopted by the University with a criminal trial, failing to recognise the necessity by the University to have an informal procedure in dealing with the question of whether or not to dismiss an employee. The applicant knew that her conduct was in breach of the Memorandum of Guidance and Outside Practice Regulations and had received ample warning on several occasions that it might constitute good cause for termination of her employment. A particularly significant matter was that the applicant admitted that if a conflict should arise between her duties to her clients and her students, she would give preference to her clients despite her obligation to carry out her University commitments without detriment to the University, although she believed any arrangements that she made in this respect had caused no disadvantage to her students. 110. In my judgment, the allegations made by the applicant that the University had acted in the mariner that was alleged were entirely unjustified. Whilst there was no doubt that considerable animosity existed between the applicant and Dr Wacks, I am unable, upon the evidence, to form an adverse opinion against Dr Wacks for he was merely carrying out his duties as Head of the department. 111. The impression sought to be given by the applicant is that she had a blanket permission to engage in outside practice and that she was not bound by the Outside Practice Regulations on the grounds that her services were not solely exclusive to the University. However, this argument is wholly untenable in the face of overwhelming evidence to the contrary. Indeed she has acknowledged the existence of the regulations and that she was bound by them. From 1984 until her dismissal, the applicant failed to co-operate with the University in the making of returns and carried on outside practice in breach of the conditions imposed upon her. No doubt, the applicant encountered difficulties after the regulations had been implemented more rigorously, but she failed to act candidly by making a full and frank disclosure of her position which exacerbated the situation to the detriment of her University duties. 112. Mr Smith, during the course of his submission, sought to vilify the University authorities and in particular Dr Wacks, by alleging that they had conspired to terminate the applicant's employment for a collateral purpose. The submissions of the University have been categorised variously as misconceived, misleading, absurd, cavalier, improper, outrageous, disingenuous while the University was accused of showing a lack of regard for the applicant's constitutional rights. Some of these assertions were appropriate to certain submissions made on behalf of the applicant, but were not justified as against the University or Dr Wacks. 113. The Council had to decide whether to terminate the applicant's appointment after forming an opinion upon the facts made after due enquiry by the CPM together with advice from the Senate as to whether there was good cause for dismissal under s.12(9) of the Ordinance. The court, upon a judicial review, is not entitled to substitute its own opinion for that of the Council, nor to decide whether the dismissal was in breach of the contract of employment. In my judgment the decision to terminate the applicant's contract, whether correct or not, cannot be described as unreasonable in the Wednesbury sense. Further, there was no evidence to support the complaints that there had been a breach of the rules of natural justice. 114. All the grounds advanced by the applicant were unwarranted with the result that the motion will be dismissed.
Representation: Mr Christopher Smith and Mr Tim Kwok (Herbert Smith) for Applicant. Mr Denis Chang, Q.C. and Miss Christine Lee (Johnson, Stokes & Master) for Respondent. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||