Kwan Wan Chee Alisa v. City University of Hong Kong

HCAL 37/2011 & HCAL 43/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 37 OF 2011

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 43 OF 2011

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Before: Hon Andrew Chan J in Court

Date of Hearing: 17 December 2012

Date of Judgment: 18 February 2013

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J U D G M E N T

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1.There are two applications for judicial review before this court. In HCAL 37/2011, the applicant (Alisa Kwan) sought to challenge a decision made by the respondent (the University) not to re‑appoint her as Residence Master for another three years. In HCAL 43/2011, the applicant (John Tse) sought to challenge a decision made by the University not to appoint him as Residence Master at all.

Background

2.Alisa Kwan is a Senior Teaching Fellow at the School of Law.  She was appointed Residence Master of one student residence between 1 August 2005 and 30 June 2011.  In the beginning of 2011, she applied for a further term of three years.  Her application was not successful.  She was informed about that decision in April 2011. 

3.John Tse is an Associate Professor in the Department of Applied Social Studies.  In the beginning of 2011, he applied to be a Residence Master.  In May 2011, he was also informed that his application was not successful too.

4.Essentially, in these two applications, both applicants challenge the decision made by the University not to re‑appoint or appoint them as Residence Master.  Consequent to that decision, they also challenge the decision of the President of the University (the President) not to entertain any of their appeals in accordance with the University’s appeal procedures.  So on the face of that, one can immediately see that those decisions under challenge are essentially result of private employment disputes unless there exist certain public law elements.

Grounds for judicial review

5.In the case of Alisa Kwan, six grounds have been put forward:

(1)  breach of relevant rules and procedures of the University and natural justice;

(2)  no proper delegation of the power to appoint Residence Master by the President and no approval of the terms and conditions of service was made by the Council in accordance with the Ordinance and statutory requirement;

(3)  failure to take into account material considerations, such as appeal procedures set out in the rules of the University ;

(4)  the decision of the Selection Committee and individual officer was bias;

(5)  breach of legitimate expectation by the Selection Committee and the President not following the procedure; and

(6)  breach of implied obligation in the employment contract, giving rise to a private law claim for damages.

6.In the case of John Tse, eight grounds have been put forward:

(1) unlawful delegation;

(2) error of law in failing to follow proper procedures;

(3) failure to take into account material considerations;

(4) violation of principle of consistency;

(5) failure to follow procedures and to give reasons;

(6) breach of legitimate expectation;

(7) bias; and

(8) breach of implied obligation in employment contract.

7.Although there are a number of grounds raised by each of the two applicants, their grounds can broadly be grouped into two categories:

(1) no or improper delegation by the Council and the President of the University to appoint Residence Master; and

(2) the decisions not to appoint are flawed with bias and irrelevant considerations and the President failed to invoke or follow internal appeal procedures.

8.The remedies sought by Alisa Kwan are declarations that the University shall:

(1) issue no final determination until the appeal procedures have been properly pursued;

(2) issue written and substantive reasons for its decision to refuse the applicant’s re‑appointment; and

(3) provide damages for not following the appeal procedures and rules of natural justice.

9.The remedies sought by John Tse are:

(1) an order of certiorari to quash the decision of the Selection Committee and the final decision of Vice‑President (Student Affairs) to refuse the applicant the Residence Master position;

(2) an order of certiorari to quash the decision of the President to refuse the applicant’s appeal under the appeal procedures;

(3) an order that the applicant’s application be remitted to the Selection Committee with an order of Mandamus that the Selection Committee to reconsider the applicant’s application;

(4) an order that the applicant’s application for an appeal under the appeal procedures be remitted to the President and an order of Mandamus to the President to set up an appeal committee; and

(5) damages and other relief.

Discussion

10.The University is a corporation established under the City University of Hong Kong Ordinance, Cap 1132.  The objects of the University are to provide for studies, training and research and development in technology, engineering, science, commerce, arts and other subjects of learning.

11.The powers of the University includes, inter alia:

(i)    providing appropriate amenities (including residential accommodation, facilities for social activities and physical recreation) for its students and persons in its employment; and

(ii) employing staff, advisers and consultants, on a full time or part time basis.

12.The Council of the University (the Council) may exercise the powers, and shall perform the duties.  By section 14(1)(c), the Council may appoint persons as employees of the University.  By section 15(1), the Council may in writing delegate to the President of the University (the President) its powers and duties.  However, by section 15(2)(a), the Council shall not delegate to the President the power to approve terms and conditions of service of any class of persons in the employment of the University.

13.By section 16(1), the President may in writing delegate to such person or committee of persons as he thinks fit, his powers and duties, including any power or duty of the Council delegated to him under section 15.  However, by section 16(2), such power of delegation, and the exercise of any such delegated power or duty, shall be subject to any restriction or condition imposed in respect thereof by the Council under section 15.

14.By section 21A, the Council may make statutes for the administration of the University.  By Statute 3, para 5(2), the President shall have authority to make appointment of staff up to and including the rank of Vice‑President.

15.In short, only the Council has the power to approve terms and conditions of service of any class of persons in the employment of the University and such power is not delegable.  On the other hand, the Council can delegate the power to make appointment of individual staff, up to the level of Vice‑President, to the President, and has conferred authority on the President to make appointment of staff up to and including the rank of Vice‑President.

16.Further, the President can, in principle, delegate such power of appointment to such person or committee of persons as he thinks fit.

17.It is contended by the two applicants that the Council had not approved any terms and conditions of service for Residence Master prior to the 2011 recruitment exercise and further that the President had not properly delegated his power to appoint Residence Master in accordance with policies, procedures of the University and statutory requirement to the Vice‑President (Student Affairs).  On the contrary, the University asserts that the position of Residence Master has been in existence for many years and that terms and conditions are clear and in particular, reflected in Alisa Kwan’s case where she had been appointed as Residence Master between 2005 and 2011.  

18.The fact that the position of Residence Master has been in existence and filled by staff does not necessarily mean it has been properly established and that its terms and conditions have been properly set and approved.   There is nothing, for example, Council minutes, before me to indicate the establishment of the position of Residence Master.  The University only manages to put forward one Management Board minutes dated 7 March 2008 which seems to formalize the appointment and re‑appointment of Residence Master.  Unfortunately, the Management Board is not the Council.  Further, there is nothing to indicate the acceptance by the Council of the Management Board’s proposal.  The position of Residence Master may well be a concurrent position, that is to be held by either academic or administrative staff, nevertheless, the position attaches with it separate remunerations and benefits.  It is therefore a class of persons in the employment of the University. 

19.In view of the fact that the best evidence put forward by the University is simply one Management Board minutes, I come to the decision that the Council fails to perform its statutory duty.  I am therefore satisfied that due to the Council’s failure, the position of Residence Master had not been lawfully established prior to the 2011 recruitment exercise.

20.Realising the above difficulty, the Council, purporting to put the matter beyond dispute, passed two resolutions in an attempt to ratify the 2011 appointment in June 2012.  These two resolutions are:

(a)  ratify and/or reaffirm and/or approve the existing terms and conditions of service of Residence Masters as set out in ….. hereinabove; and

(b) ratify and/or reaffirm and/or approve all appointments of Residence Masters by the Vice‑President (Student Affairs) (and the former Vice‑President (Undergraduate Education) prior to the change of the University organization structure on 1 January 2009) on recommendations from a selection/re‑appointment committee (“Selection/Re‑appointment Committee”) and declare that the appointment of all the existing Residence Masters has effect as from the respective dates upon which they in fact began to exercise the powers and perform the duties of their appointment.

21.In my view, the Council can only do so in respect of resolution (b) but not (a), for if a public body has no power to delegate functions, it also has no power to ratify an ultra vires delegation (Barnard v National Dock Labour Board 40 [1953] 2 QB 18).  The Council can only delegate its power to employ staff but not approve terms and conditions.

22.That being the case, the inescapable conclusion must be that the position of Residence Master has never been properly established.  Terms and conditions established by whatever body or person within the University are nullity.

23.That however is not the end of the matter.  The next step this court must look into is the specific reliefs sought by the two applicants.  Given the conclusion stated above, it seems to me plain that the reliefs sought by Alisa Kwan cannot possibly be granted.

24.As far as the reliefs sought by John Tse are concerned, they also cannot possibly be granted for Certiorari and other prerogative remedies are only available to impugn a decision of a tribunal which is performing a public duty.  The decisions made by the Selection Committee, the Vice‑President (Student Affairs) and the President are decisions of domestic matters only (R v BBC ex parte Lavelle [1983] 1 AER 241 and Tan Shin Ying v City University of Hong Kong, McWalters J, Unreported, HCAL 36/2012).  Notwithstanding my above conclusion that the position of Residence Master had not been properly established, their applications for judicial review in relation to the specific reliefs sought must still fail.

25.For the sake of completeness, the two applicants also argue that the President had not properly delegated his duty to the Vice‑President (Student Affairs) in accordance with the statutory requirement for the 2011 recruitment exercise.  They assert that the improper delegation also rendered the decision not to appoint them amendable to judicial review.  Having perused all the papers and exhibits, I am satisfied that the President (Acting President) did, by writing, delegate his duty to the Vice‑President (Student Affairs).  The Vice‑President (Student Affairs) at the end did approve all the Residence Master appointments, there is in my view no substance in this ground.

26.In so far as the other grounds, ie the second category, are concerned, they are nothing but alleging that the University did not appoint them and adhere to the prescribed staffing appeal procedures.  Those grounds in my view are plainly matters of private law which are not amendable to judicial review.  The fact that simply because the Council had acted in breach of its statutory duty would not change the subsequent recruitment exercise from matter of private law into one with public law element.

27.For those reasons stated above, both applicants’ applications for judicial review are dismissed.  Given my reasons and outcome above, there are no substantive winners in these applications, I therefore make an order nisi that there will be no order as to costs.

Mr John Wright, leading Ms Ella Liang, instructed by Haldanes, for the applicant (HCAL 37/2011)

Ms Ella Liang, instructed by S K Lam, Alfred Chan & Co, for the applicant (HCAL 43/2011)

Mr Anderson Chow SC, instructed by Mayer Brown JSM, for the respondent (HCAL 37/2011 and HCAL 43/2011)