Leung Chak Sang v. Lingnan University

HCAL000638A/2000

HCAL 638/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 638 OF 2000

__________

Coram: Hon Chung J in Court

Dates of Hearing: 29 and 31 January 2001

Date of Judgment: 15 March 2001

Date of Addendum: 12 April 2001

_____________________

A D D E N D U M

_____________________

1. Introduction

In a Judgment dated 15 March 2001, I dismissed this application for judicial review. This Addendum is made at the request of Mr Pun, counsel for the applicant in his letter dated 3 April 2001. It relates to one of the observations I made in the Judgment regarding counsel's conduct under the heading "Other Matters". For the avoidance of doubt, the matters set out herein do not affect my decision on the outcome of this application.

2. At pp. 26R to 27I of the Judgment, I said:-

"... In the course of his submissions in open court, Mr Pun has stated that Dr Lee has been impolite to the applicant. He persisted in this submission despite Mr Wong's objection. The alleged impolite behaviour was taken from Dr Lee's statement that he left the scene after the verbal exchange with the applicant and did not return until much later on that day because he was emotionally upset. As a result of this submission, a corresponding report appeared in the media the following day.

There is no evidential basis to suggest that Dr Lee has acted impolitely. When counsel make allegations in court against third parties, they do so with immunity afforded by the law. Counsel are expected to act responsibly because the individuals under attack would have no redress in law and often no chance to rebut such allegations. It is regrettable that Mr Pun has not exhibited the high standard which are expected of counsel when he persisted in making the allegation against Dr Lee despite the lack of evidence to such effect."

3. On 3 April, 2001, applicant's counsel wrote to me pointing out the following matters:-

(a) despite my observations above, there is in fact evidential basis in support of that submission. Mr Pun refers to para. 5 and 6 of the Amended Form 86A and para. 3 of the applicant's 2nd affirmation;

(b) my criticism of Mr Pun was widely reported by the major local newspapers. This will have a negative impact on his professional career.

4. Para. 5 and 6 of the Amended Form 86A read:-

"... At about 11 a.m. on 8th December 1999, the Applicant and three other female students discussed the matter with Dr Lee Keng-man, William who is and was at all material times the Programme Director of the Programme Office. The Applicant and the other students also tried to suggest alternative ways of conducting course pre-registration.

... However, Dr Lee did not accept their opinion and only defended the pre-registration arrangements. After about 15 minutes, Dr Lee decided not to listen anymore to the Applicant and other students and walked away from the students rudely ... " (emphasis supplied).

5. Further, para. 3 of the applicant's 2nd affirmation reads:-

"I have read a copy of the Amended Form 86A and I confirm that the factual assertions contained therein are true."

6. It is strictly correct that there is evidential basis for counsel's submissions. However, the matter ought to be put in its proper context:-

(a) the reference to Dr Lee's alleged conduct is the word "rudely" in the one sentence set out above in an Amended Form 86A consisting of 77 paragraphs (under "Grounds On Which Relief is Sought") which spans over some 25 pages (excluding the title page, the prayer for relief, the end page and the backsheet);

(b) the evidence in support is contained in the general verification at para. 3 of the applicant's 2nd affirmation;

(c) when the applicant was interviewed by the Student Disciplinary Committee and the Appeals Committee, he never justified his behaviour by alleging that he was treated rudely by Dr Lee at the material time.

7. Counsel also relied on Dr Lee's statement. This has already been referred to at pp. 26T-27A of the Judgment:-

"... Dr Lee's statement that he left the scene after the verbal exchange with the applicant and did not return until much later on that day because he was emotionally upset."

A finding is strictly unnecessary for the judicial review application, but to avoid any doubt, I do not consider this to support the alleged misconduct.

8. Despite the reference to the supporting evidence, but subject to what will be said below, I consider:-

(1) the protests of Mr Wong, counsel for Lingnan, against the allegation made against Dr Lee by Mr Pun at the hearing; and

(2) my other observations regarding counsel's conduct arising from such allegation,

are justified and accordingly do not see the need to depart from them for the following reasons.

9. The alleged improper conduct of Dr Lee has never been made an issue in this application and has not been put at the forefront of the applicant's case in any of the documents filed and served before the hearing. The issues raised by the Amended Form 86A can conveniently be put under the following headings:-

(1) alleged procedural improprieties:-

(a) alleged lack of a charge sheet;

(b) alleged non-disclosure of documents before the appeal hearing;

(c) refusal of legal representation;

(d) refusal of cross-examination;

(e) alleged failure by the Appeals Committee to give reasons for its decision;

(2) alleged appearance of bias of the Appeals Committee;

(3) the Appeals Committee's decision was allegedly ultra vires Regulation 26.1 of Lingnan's Regulations;

(4) the Appeals Committee's decision allegedly contravenes the Basic Law and/or the Hong Kong Bill of Rights Ordinance, Cap. 383.

10. Because the application does not involve Dr Lee's alleged misconduct, and this was not put in the forefront of the applicant's case, neither Lingnan nor Dr Lee saw the need to (and accordingly did not) file any evidence to refute it.

11. In these circumstances, I remain of the view that counsel ought not have made the accusation on more than one occasion at the hearing. As was said in Archbold 2001 in relation to unnecessary cross-examination in criminal trials:-

"Counsel should not forget that a trial takes place in public and that therefore names of third parties should not be bandied about unless it is necessary for the proper conduct of the trial" (para. 8-113 citing R v. Flynn [1972] Crim LR 428).

In short, Dr Lee's conduct has no relevance as regards this application.

12. Having so concluded, in view of the contents of counsel's letter dated 3 April 2001 and in order to alleviate counsel's concern, the above conclusion does not connote that counsel has deliberately flouted the rules or acted with malice.

13. I now accept, in view of counsel's said letter, that he was most probably acting out of an overzealous attempt to advance his client's case.

Representation:

Mr Hectar Pun, instructed by Messrs Fok & Johnson, assigned by DLA, for the Applicant

Mr Wong Yan Lung, instructed by Messrs Wilkinson & Grist, for the Respondent