Re John Leroy Mitchell
Read the full judgment text of HCMP 322/1976 on BabelCite. This High Court CFI judgment.
1. The applicants seek an order of certiorari to remove into the High Court, for the purpose of quashing, a certain resolution made by the Senate of The Chinese University of Hong Kong on the 28th of May 1976 whereby it was resolved that the teaching staff of the Department of Journalism of the University be censured for their failure in performing their teaching duties in relation to the Shatin News. The Shatin News was an experimental newspaper produced within the department by the teaching st
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HCMP000322/1976 IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS NO. 322 OF 1976 -----------------
----------------- Coram: McMullin, Ag. J.A. & Cons, J. Date of Judgment: 3rd December, 1976. ----------------- JUDGMENT ----------------- McMullin, Ag. J.A.: 1. The applicants seek an order of certiorari to remove into the High Court, for the purpose of quashing, a certain resolution made by the Senate of The Chinese University of Hong Kong on the 28th of May 1976 whereby it was resolved that the teaching staff of the Department of Journalism of the University be censured for their failure in performing their teaching duties in relation to the Shatin News. The Shatin News was an experimental newspaper produced within the department by the teaching staff in conjunction with the students for the purpose of giving the latter practical experience and instruction in journalism. At the time of the censure motion there were only five members of the teaching staff three of them being the present applicants. At that time the first applicant, Mr. John Mitchell, was the head the Department of Journalism; the second applicant, Dr. Michael T.K. Wei, who is a lecturer in the department, was registered as the proprietor of the Shatin News; the third applicant, Mr. Bruce Lee, also a lecturer in the department, was the person specifically appointed as adviser to the editorial board of the Shatin News. As head of the department, Mr. Mitchell was also its editor and publisher. The Shatin News was written in Chinese and it is common ground that Mr. Mitchell, who does not know the language, confided the task of supervising the contents of each issue to Mr. Lee, who is a professional journalist, and who, in his turn, accepts that it was his duty to see that the newspaper was not only competently produced but that all the articles published therein were accurate, truthful, and did not contain matter which was libellous or otherwise objectionable. It should be added that Mr. Mitchell has, however, never sought to disclaim overall supervisory responsibility for all that appeared in the newspaper. 2. The statement in support of the present application is not strictly accurate in that it states that the resolution of which complaint is made was one which censured the three applicants, whereas, as we have seen, it was a censure upon the teaching staff generally. However it has never been denied that the three applicants are persons with primary responsibilities and this manner of stating their claim is readily explicable by reason of the fact that a report of the censure motion which appeared on the 1st of June 1976 in one of the leading English language daily newspapers in the Colony represented that motion as being directed personally against the three applicants by name. We were told that news of the censure motion had also by then appeared in a number of Chinese language newspapers though whether in the same erroneous form or not we cannot say. It may very well be that had the matter not achieved this unwelcome and widespread publicity outside the University the applicants might have sought to redress whatever grievance they felt to be inherent in it in some manner other than the present proceedings. That, however, is by the way. 3. The applicants support their claim upon two grounds in this court. Firstly, it is said that the Senate acted in breach of the rules of natural justice by not affording any one of them an opportunity of appearing before the Senate to be heard against the motion before it was passed; and, secondly, that the motion should in any event be quashed on the ground that the Senate was not a body entitled to pass such a motion which must therefore be regarded as ultra vires and void. 4. It will be helpful before considering the validity of these contentions to recount briefly the events leading up to the making of this application. In the issue of the Shatin News dated 29th of April 1976 there was published an article under the headline "87 honours graduates of the Chinese University failed in their applications for the position of administrative officers". It is not disputed that the subject matter of the ensuing article was based upon a report which had been submitted to the Vice-Chancellor of the University by a committee appointed to advise upon the recruitment of administrative officers to the Hong Kong Government from the ranks of the students of the University. The report included some findings and recommendations by the committee. It was critical of certain aspects of the academic curriculum relating to the examinations held in connection with recruitment to the administrative services and critical also of the students response thereto. Certain recommendations were made in the report following the line of these criticisms. It has never been seriously disputed that this report was of a confidential nature and was so described, the cover being marked "Strictly Confidential" the word "Confidential" being printed at the top of the first page of each copy. It was circulated to the Chairmen and Conveners of various academic boards attached to the several faculties of the University. Mr. Mitchell received one such copy in his capacity as Secretary of the Board of Studies in Journalism and Communication and he affirms that he distributed certain abbreviated copies of the same report, which he received at the same time, to three of the faculties of his department which had offices next to his. He could not recall whether or not he had given copies of these abbreviated versions to certain student representatives on the Board. 5. It is not suggested by the University authorities that the article which appeared in the Shatin News on the 29th of April 1976 in any way misrepresented the information contained in the report. What the University authorities are objecting to is that matter, which was primarily of a practical and domestic character, of interest to the authorities charged with improving standards within the University, had been given an unwelcome and potentially embarrassing public circulation (copies of the Shatin News were customarily handed out to the local press) and, more importantly, that there had been a clear and gross breach of confidentiality in that publication. 6. Following upon the publication of the article the Administrative Chairman of the Board of Studies in Journalism and Communication, Mr. CHUAN Han-sheng, the President of New Asia College, held a meeting with certain persons involved in the production and publication of the newspaper. These included Dr. Michael Wei and Mr. Bruce Lee but Mr. Michael, the head of the department of journalism, was not asked to be present. President Chuan said that he did not invite him because Mr. Mitchell's contract was due to expire in July and he was proposing to leave the University. This meeting was held on the 21st of May and according to President Chuan, he made it clear to those present that the University authorities were troubled and displeased by the dissemination of this confidential material and he said that he informed those present that the teaching staff were responsible for what had appeared. It is common ground that Dr. Wei and Mr. Lee had a full opportunity of taking part in the discussion upon that occasion. Indeed Mr. Lee, the person primarily responsible for the production of the newspaper, would appear to have taken the line that the publication of this material was not detrimental to the interests of the University and that, on the contrary, it showed a laudable ingenuity on the part of the student reporters in uncovering factual matter of interest within the University and to the public at large. He said that he did not recall President Chuan bringing up the question of breach of confidentiality at all and that the confidential nature of the material was only drawn to his attention when he was later apprised of the censure. It is common ground that, following upon the meeting of the 21st of May, further publication of the newspaper was suspended at the instance of President Chuan. There was some measure of contest on the affidavits as to whether the issue of confidentiality was raised at the meeting and Mr. Mitchell even seems disposed to suggest that the matter published, admittedly based upon the report, was not truly of a confidential nature. It is clear moreover that no mention was made at that meeting of any intention to report to the Senate or of the possibility of any motion of censure being passed upon the teaching staff. 7. The offending article had already been discussed by the administrative and planning committee of the University on the 15th of May, and on the 25th of May President Chuan reported to that committee concerning his meeting with the Shatin News staff on the 21st. At a meeting of the Senate on the 28th of May President Chuan once more reported on the meeting of the 21st. His action in suspending the publication of the newspaper was endorsed unanimously and upon a motion of censure being moved by one of the faculty Deans the question of censure was debated. It is of some interest in respect of our present concerns that in the course of debate consideration was given to the possibility of calling before the Senate members of the staff of the Journalism Department for the purpose of offering explanations. The Senate, however, considered that there was sufficient material before it to justify censure without further inquiry and accordingly, after the discussion, a motion in terms that the "teaching staff of the Department of Journalism and Communication be censured for their failure in performing their teaching duties in relation to the Shatin News" was carried by a majority of 24 to 5 there being five abstentions. 8. On the 1st of June a letter was sent to Mr. Mitchell as head of department notifying him of the censure and an extract from the minutes of the meeting of the 28th relevant to the motion accompanied that letter. Meanwhile however the inaccurate report of the censure motion to which reference has already been made appeared on the 1st of June in one of the leading Hong Kong dailies. In the circumstances it is perhaps not altogether surprising that Mr. Mitchell was somewhat angry and upset. A similar notification of the censure had been sent to each member of the teaching staff on the 1st of June. There was also a notification of the resolution in the issue, dated 1st of June, of an official domestic newsletter circulated within the University although no names were mentioned in that newsletter. There followed an attempt, made on behalf of the teaching staff of the Journalism Department by 35 members of the Academic Board of New Asia College, to have a review of the censure motion. The matter was set down for debate on the agenda of the meeting of the Senate to be held on the 30th of June. By that time however the matter had got into the hands of the lawyers. Messrs. Johnson Stokes & Master on behalf of the applicants had written on the 4th of June to the secretary of the Senate complaining of the procedure which had been adopted and raising certain objections thereto. This had been put in the hands of Messrs. Lo & Lo who were engaged to act on behalf of the Senate but no immediate reply was sent to the letter of Messrs. Johnson Stokes & Master. On the 28th of June the solicitors for the applicants wrote to the solicitors for the respondents objecting to the holding of a Senate meeting to discuss the censure motion afresh on the 30th of June and threatening to apply for an injunction to prevent it and, in consequence, that meeting was postponed. On the 7th of July Mr. John Chen the Registrar of the Chinese University wrote to each of the five members of the teaching staff of the Journalism Department notifying them that the Academic Planning Committee of the Senate was proposing to consider the censure motion with a view to making further recommendations to the Senate. These letters invite the recipients to raise any matter which they would like to be placed before the Committee by way of documentary evidence or written submissions relative to the censure motion. However, the applicants had already upon the 5th of July made their initial application for leave to apply for an order of certiorari before the Full Bench. Leave was given upon that day but, the long vacation intervening, the application itself was not heard until the 28th of October, the hearing being adjourned for completion to the 2nd of November. In the event therefore there has been no further debate on this censure motion and, notwithstanding the expressed willingness of the authorities to hear representations from the applicants, no such hearing has taken place. 9. Following the sequence of counsel's argument in logical though not in chronological order, the first of the questions to be dealt with is whether the Senate had power to pass such a motion of censure. If it had not then Mr. Chang says, its act was a nullity. If that is true, it would lead him into somewhat deeper waters since it would then become necessary to demonstrate that certiorari lies in respect of a proceeding which was void ab initio. It was this feature of his case which prompted him at one point to apply, somewhat tentatively, to add to his present application an application, by way of motion paper, for a declaration that the proceedings of of the Senate were in this particular void. That was strenuously resisted by Mr. Rogers for the respondents and in the event it was withdrawn. But in any case we do not think we need spend much time upon that contention. The contention was that the Senate as a statutory body is confined within the powers specifically conferred upon it under the 12th of the Statutes made by the Council of the University pursuant to the powers conferred upon the Council under section 20 of the Chinese University of Hong Kong Ordinance. These powers are said to exclude anything in the nature of a condemnatory or disciplinary power. If such powers are possessed by anybody, counsel says, they must be proper to the Council itself which, by virtue of section 15(a) of the Ordinance, is empowered to exercise a general supervision over the affairs, purposes and functions of the University. In our view there is nothing in this point. It is quite true that the Council has the overall administrative control of the University and that its function is thus to be contrasted with that of the Senate which is charged with the supervision of all things academic pertaining to the College. Amongst the powers and duties of the Senate enumerated in Paragraph 3 of the 12th Statute is found (in sub-paragraph (c) )the power to "direct and regulate the instruction and teaching in approved courses of study and to conduct the examinations leading to degrees, diplomas, certificates and other awards of the University;" In our view it must be reasonably ancillary to the power to direct and regulate the instruction and teaching of approved courses that the Senate should also be entitled to advise caution and reprove members of the teaching staff and the student body, though it must of course be careful over the procedures it adopts to do so. It could scarcely have been suggested, in the present case, that, assuming for the moment the necessity of affording those censured a hearing, the proper body to hear their explanations as to the publication complained of would not have been the body directly charged with maintaining the academic standards relevant to that particular department. If, having been heard by the Senate all three applicants had refused to accept such a rebuke and had announced an intention of disregarding the suggested restraint upon their conduct in future the matter might well then have become such a disciplinary issue as could only be dealt with by the superior administrative body. It is unlikely that the argument that the Senate had exceeded its powers would ever have been advanced had the reprimand been confined within the walls of the University and had been by means of private communication between the Senate and the persons concerned through the mediacy of President Chuan. We do not think it can be said that the Senate went beyond its powers in deciding to issue a reprimand. Mr. Chang however also argues that assuming that his clients were denied the right of hearing which they ought to have been accorded before the Senate, this breach of the rules of natural justice in itself would amount to the motion of censure being an act ultra vires the Senate's proper powers and that, looked at in that light, the purported act of censure was once more null and void. With respect that seems to us to introduce an unnecessary complication by an unhelpful intermingling of the two primary issues. If the Senate has, within the limits of its Statutes, power to issue reprimands of this kind, as we think it has, the only question remaining is whether it did so in a manner which made a breach in the rules of natural justice by failing to afford a fair hearing to those concerned. Thus it is to a consideration of the alleged breach of the rule "audi alteram partem" that we must turn as the central issue in this case. 10. It will not be necessary to refer to the many cases brought to our attention by counsel in demonstrating the gradually widening ambit of this rule from its former confines within the dictum of Lord Atkin in Rex v. Electricity Commissioners ex parte London Electricity Joint Committee Co. (1920) and Others(1) where at page 205 he said:
Since then in many cases many different types of body have been impugned before the courts in respect of a great variety of different acts and a fair epitome of the trend of judicial opinion may be gathered from the Privy Council decision in Furnell v. Whangarei High Schools Board(2) where at page 679 Lord Morris of Borth-y-Gest giving the opinion of the board says:
Although that case involved an application for injunctions and other relief rather than an application for certiorari there are other cases involving certiorari where similar expressions have been used. Thus in Re H.K. (an infant)(3) application was made for an order of certiorari to quash the decision of the Chief Immigration Officer at London Airport refusing admission to the infant on the ground that the decision was based on insufficient evidence and that the boy had been denied the opportunity of presenting additional evidence to establish his age to the satisfaction of the authorities. That application was dismissed but at page 630 Lord Parker, C.J. contrasting the case before him with a previous case which had been cited said:
He went on to say that this went somewhat further than the decided cases which up to then had tended to adhere to the notion that it was necessary for an applicant to show a duty in the person or body complained of to act judicially or quasi-judicially. It is plain that he was prepared to go that far for he later considers a passage from the judgment of Lord Radcliffe in the case of Liversidge(4), where the latter had referred to the duty to act judicially. In relation to that passage Lord Parker, at page 631, said:
Mr. Rogers for the respondents, while somewhat demurring to the opinions expressed by Professor de Smith in his noted work on the Judicial Review of Administrative Action, does not seek to deny that the principles discernible in the older cases have been somewhat extended to include something in the nature of a legal duty, in certain cases, to act fairly. But he says that all the cases cited demonstrate that where the courts have intervened, whether by way of granting injunctions or orders of certiorari, there has invariably been something in the nature of an interference with a property right of the applicant. That was so he says even in the cases of Durayappah v. Fernando(5); in Re Pergamon Press Ltd.(6); and Regina v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association and Another(7) upon which Mr. Chang relies. He does not deny that the censure motion in the present case, implying as it does negligence or incompetence on the part of the teaching staff, may have some effect upon the reputation of the individual members thereof. But he says that mere criticism of this kind unaccompanied by any invasion of a property right could never be sufficient to invoke the court's interference. He maintains that nothing in the nature of a penalty has been imposed by the Senate and he says that what the Senate did was merely to exert its power in respect of a domestic disciplinary matter. There is some substance in these contentions. Nevertheless, it is very difficult to draw the line between executive and administrative acts of a kind purporting to be purely disciplinary but which may asperse reputation and technical or professional competence and the cases in which it can be said that the act complained of may have the effect of disturbing property rights or the right to livelihood. Moreover there is some cover for the contention of Professor de Smith, in the third edition of the work to which referance has been made (page 158), that the court will intervene to see that fair procedural standards are observed even in cases where the action taken involves nothing more than an aspersion upon reputation. In the case of Blanchard v. Dunlop(8), it is implied by what is said by Cozens-Hardy, M.R. at page 170 that had the dismissal of the teacher been associated with a slur upon her character she might have had good cause to complain of not having been given a hearing. If one leaves aside the publicity given to this motion of censure outside the University, which, although it may well have prompted the action taken by the applicants, is, nevertheless, to some extent irrelevant to the real nature of their complaint, one is still left with the fact that something in the nature of a penalty has been imposed which, at least within the world of the University itself, but possibly also beyond it, might adversely affect the subsequent careers of the applicants. We think therefore that in fairness the Senate ought to have given an opportunity to those members of the teaching staff whom it deemed to be responsible for disseminating confidential matter of explaining and possibly of defending the publication or at any rate persuading the Senate that no formal motion of censure was necessary or desirable. While the Senate is not a professional disciplinary body such as is charged with the duty of maintaining standards of conduct and propriety amongst the members of, for example, the medical and legal professions, its position in relation to teachers employed by the University is analogous thereto. Although, such councils and bodies as the Law Society or the Medical Association are normally bound by rules which oblige a hearing before the imposition of disciplinary procedures even by way of censure, there does not seem to be any good reason why the Senate of a University should be any the less bound to observe a reasonable standard of "fair play in action" where any condemnation which it makes, in lawful exercise of its powers, either by reason of its intrinsic gravity, or by virtue of the nature of the publicity it receives, or by a combination of these things, may reasonably be said to be capable of affecting adversely the future prospects of promotion or employment of those condemned. In this connection it is important to note the publicity given to the motion of censure in the University's own official newsletter circulated within the campus upon the 1st of June. Although the older notion of the nature of the duty placed upon persons or bodies acting in a judicial or quasi-judicial capacity may, under the impact of more recent authority, have somewhat receded into the wider frame of a need to act fairly it nevertheless remains, in circumstances such as the present, a useful consideration and may be a touchstone. In Glynn v. Keele University(9) at page 95 Pennycuick V.-C., dealing with the case of a student at the University who had been fined and excluded from residential privileges for an act of misconduct, pointed out that in the context of the tutor and pupil relationship a distinction was to be drawn between acts done in a magisterial capacity and those done in a quasi-judicial capacity. The latter, which did not fall subject to the intervention of the court, would, he thought be exemplified by circumstances where the body or individual was concerned to impose penalties by way of purely domestic discipline. We have suggested that the censure motion in the present case was of the nature of a penalty but if it had been imposed in circumstances which made it clear that it was intended as a domestic discipline only - as for example by private communication to the head of the department or to each of the members concerned - then we do not think it could be argued that the court had any right to intervene notwithstanding that no opportunity had been given beforehand of making a case. But here we have experienced and qualified persons - not pupils - admonished in circumstances which amounted to a public rebuke. In those circumstances we think it proper that the audi alteram partem rule should have been observed. 11. The only question which remains to be considered is whether, the remedy being discretionary, we ought, in the exercise of our discretion, to make the order. It would be tempting to say that Dr. Wei and Mr. Lee at least had had a hearing. There is no doubt that they were given an opportunity at the meeting of the 21st of May to air their views and, although Dr. Wei does not seem to have entered to any great extent into the discussion, Mr. Lee put forward what amounts to a spirited defence of what had been done on the basis of what he evidently regarded as the newsman's proper code, something which he was endeavouring to inculcate in those under his tutorial care. The fact remains however that the real matter of offence from the point of view of the University authorities was the breach of confidentiality. There is a dispute upon the affidavits as to whether this question was ever mentioned by President Chuan on the 21st of May. Furthermore, Mr. Mitchell, who in any event was not present at that meeting, would seem to raise in his later affidavit some question as to whether or not the report of the advisory committee on recruitment was in any true sense a confidential report. It is very unlikely that he could under any circumstances have sustained that plea in view of the patent fact that it was marked confidential. It might however have been possible for him to persuade either President Chuan or the Senate, had he been given a hearing, that the breach of confidentiality has to some extent been incused by the wide dissemination of such material to many academic boards at meetings of which students would occasionally be present who would be unaware, without special instructions in that regard, that some of the matters discussed were of a confidential nature. However that may be, it is clear that he at least was not given an opportunity of saying anything at all. Mr. Rogers suggests in this regard that there really was nothing that Mr. Mitchell could have said in view of the clear fact that confidential matter had been leaked. He suggested that since the reprimand was aimed against the department there was no particular need for Mr. Mitchell to be present on the 21st of May. That seems to us to be wrong for two reasons; firstly, because it was stated in the affidavit of President Chuan that the reason Mr. Mitchell was not called to that meeting was because he was soon to leave the University at the conclusion of his contract with the University; secondly, if it was intended to censure the department and not the individuals in the department then surely Mr. Mitchell, as the department's head, was precisely the person who should have been apprised of the meeting and asked to attend. He may certainly legitimately complain that he was not heard but even Dr. Wei and Mr. Lee have some cause to complain for, to the present, it remains in dispute as to whether the real cause of complaint i.e. dissemination of confidential information, was pointed out to them rather than that a mere complaint was made by President Chuan as to the publicising of certain alleged academic shortcomings of the University. If there was nothing further to be said, we would think that, although upon the authorities the case may be a border-line one, the defendants ought to have their order. But there are certain features in the situation which we think demand that our discretion should be exercised the other way. Firstly, it seems clear that there was in fact a breach of confidentiality and that innocuous though it may well appear to outside eyes, the material excerpted from the report should not have been published without permission. Secondly, although a hearing before the Senate might conceivably have resulted in an amicable accommodation that seems unlikely in view of the attitude both of Mr. Mitchell and Mr. Lee towards what had occurred. Had they persisted in that attitude it seems very unlikely that representations of that kind would have found favour. Indeed, the censure might then have been in even more stringent and specific terms. Thirdly, the possibility of an adverse effect upon the careers of any one of the three applicants seems remote. An undertaking was originally given in the case of Mr. Mitchell at the time of the first adjournment that no note of the reprimand would appear upon any reference which might be sought in his regard prior to the hearing. We understand that it is also agreed that no further mention of it is to be made to any person who may in the future seek information concerning Mr. Mitchell's academic or personal qualities. Mr. Lee is at retirement age and is, we understand, due shortly to retire so that no question as to the jeopardising of his future prospects of promotion is likely to arise. Dr. Wei is only marginally and nominally connected with the Shatin News, a fact which is known in the University circles and the censure, which was after all directed against the department, seems very unlikely to have any adverse future effect upon his fame or prospects in the University. Fourthly, and most importantly, all the applicants have been, although belatedly, afforded an opportunity of presenting their views to the Senate but, no doubt under advice, preferred to proceed with their application and to take steps to block the meeting at which it was proposed to have the matter aired afresh. For these reasons, and notwithstanding the view we have taken that the applicants should have been afforded a hearing, we think, nevertheless, that the order sought should be refused. There will however be no order as to costs. Representation: Denis Chang (J.S.M.) for Applicants. Anthony Rogers (Lo & Lo) for Respondent. (1) (1924) 1 K.B. 171. (2) (1973) A. C . 660. (3) (1967) 2 Q.B.D. 617. (4) (1942) A.C. 206. (5) (1967) 2 A.C. 337. (6) (1971) Ch. D. 388. (7) (1972) 2 Q.B.D. 299. (8) (1917) 1 Ch. D. 167. (9) (1971) 2 All E.R. 89. |