Fung Jing En v The Council Of The University Of Hong Kong

Court:High Court (Hong Kong)
Judgement Number:HCAL263/2015
Judgment Date:13 Apr 2018
Neutral Citation:[2018] HKCFI 777
HCAL262/2015 LI FUNG KEI v. THE COUNCIL OF THE UNIVERSITY OF HONG KONG

HCAL 262/2015

[2018] HKCFI 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 262 OF 2015

_________________

BETWEEN
LI FUNG KEI Applicant
and
THE COUNCIL OF Putative
THE UNIVERSITY OF HONG KONG Respondent

_________________

AND

HCAL 263/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 263 OF 2015

_________________

BETWEEN
FUNG JING EN Applicant
and
THE COUNCIL OF
THE UNIVERSITY OF HONG KONG
Putative
Respondent

_________________

(heard together)

Before: Hon Au J in Court
Date of Hearing: 6 December 2016
Date of Decision: 13 April 2018

_________________

D E C I S I O N

_________________

A. Introduction

1. These are the applicants’ leave applications respectively under HCAL 262 and 263/2015 to apply for judicial review challenging the decision (“the Decision”) made by the Council of the University of Hong Kong (“the Council”) on 29 September 2015. By way of the Decision, the Council decided not to appoint Professor Johannes Chan (“the Candidate”) for the post (“the Post”) as Pro‑Vice‑Chancellor in charge of Academic Staffing and Resources. The Candidate was recommended by the Search Committee previously set up by the Council to look for and recommend candidates for the Post.

2. The applicant under HCAL 262/2015, Mr Li, is an undergraduate student of the University of Hong Kong (“the HKU”). The applicant under HCAL 263/2015, Mr Fung, is a student and was a member of the Council (as its undergraduate student representative) at the material time. At the hearing, both Mr Li and Mr Fung were represented by Ms Gladys Li SC, leading Ms Linda Wong (for Mr Li) and leading Mr Jeffery Tam (for Mr Fung).

3. Under HCAL 262/2015, Mr Li raises a single ground of judicial review in the Amended Form 86, which is that the Decision is unlawful as the Council failed to give any or adequate reasons for the Decision (“the Lack of Reasons Ground”).

4. The proposed grounds raised in the intended judicial review by Mr Fung in HCAL 263/2015 under the Amended Form 86 are in gist that the Decision is unlawful as:

(1) The Council failed to provide an opportunity for the Candidate to be heard when this was clearly required under the Council’s Tameside duty to make sufficient inquiry and as a matter of fairness (“the Procedural Impropriety Ground”).

(2) The Council in making the Decision made material errors of fact, took into account irrelevant considerations and in any event gave manifestly excessive weight on certain considerations (“the Material Illegality Ground”).

(3) The Council in making the Decision failed to consider all relevant considerations (“the Relevant Considerations Ground”).

5. In the respective original Forms 86 filed on 29 December 2015:

(1) Mr Li seeks the relief of an order to compel the Council to give reasons for the Decision and a declaration that the Decision is illegal.

(2) Mr Fung seeks the relief of a declaration that the Decision is illegal and procedurally improper.

6. As directed by the court, the Council filed an Initial Response on 29 March 2016 to oppose leave to be granted. The principal initial grounds of opposition are that:

(1) The Decision is not amenable to judicial review as it is in nature an employment decision made by the Council not in the exercise of a public law function.

(2) The Decision is in any event academic and futile since no useful purpose can be served by giving the reliefs as the Post would still be kept vacant. In any event, insofar as Mr Li’s intended judicial review is concerned, the membership of the Council has since changed substantially and in law the court cannot compel the presently differently constituted Council to give reasons for the Decision.

(3) Mr Li has no sufficient locus to bring the intended judicial review.

(4) The proposed grounds are in any event without merits and not reasonably arguable.

7. By way of the Amended Forms 86 made on 28 November 2016 (about a week before the leave hearing):

(1) The applicants proposed to make various amendments to the Form 86 to set out materials and propositions alleging effectively that the Decision relates to and concerns with institutional autonomy and academic freedom and autonomy protected under Article 137 (“BL137”) of the Basic Law (“the BL”).[1] The applicants further rely on BL34 and 136[2] to buttress the right under BL137.

(2) The applicants also sought to amend the relief:

(a) Mr Li now only seeks the relief of a declaration that “the Council failed to have regard to their duty to protect and maintain the institutional autonomy of and academic freedom of and within the University of Hong Kong and/or through the statement made by the Chairman in accounting the Decision the Council similarly failed in that the Decision was unreasoned and/or unsupported by adequate reasons”.

(b) Mr Fung now seeks the relief of a declaration that “the Council failed to have regard to their duty to protect and maintain the institutional autonomy of and academic freedom of and within the University of Hong Kong and the Decision was procedurally improper and/or unlawful”.

B. The brief facts

8. The University of Hong Kong Ordinance (Cap 1053) (“the HKUO”) designates the Council as the supreme governing body of HKU. Members of the Council are required to keep all the discussions in the Council’s meetings and proceedings confidential.[3]

9. Section 12(1) of the HKUO provides that the officers of the University shall include the Pro-Vice-Chancellors (“PVC”).

10. By 2014, the Post (which was then named as Pro‑Vice‑Chancellor (Staffing)) had been left vacant for several years since the previous person occupying the Post left HKU. In January 2014, the Council decided (accepting the recommendation of the Human Resources Committee of HKU) to re‑establish the Post. In June 2014, the Council decided to change the name of the Post from Pro‑Vice‑Chancellor (Staffing) to the present Vice President & Pro‑Vice‑Chancellor (Academic Staffing and Resources).

11. A Search Committee (headed by the President and the Vice‑Chancellor with other members appointed by the Council) was then formed to select candidates (with the assistance of a head hunting firm) to be recommended to the Council for the Post.

12. According to the Post’s advertisement, the office‑holder would be responsible for developing the HKU’s policies and processes in academic resources allocation, inclusive of financial resources, and all facets of faculty recruitment, retention, and professional development.

13. Sometime prior to 30 June 2015, the Search Committee indicated that it was ready to present its recommendation for the Post. Its recommendation was placed on the agenda of the Council meeting of 30 June 2015. However, the Council resolved and voted to defer its discussion.

14. Eventually on 29 September 2015, the Council met again and discussed the recommendation. Members of the Council took turns to express their views about whether they would support the recommendation. The Council finally voted and made the Decision not to accept the recommendation.

15. After the meeting, the then Chairman of the Council, Dr C H Leong stated to the public that “the Council has rationally debated the recommendation of the Search Committee, and our discussion today is based on the long‑term and the best interest for the university, that we did not accept the recommendation”.

16. In this respect, it must be noted that G Lam J in The University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd (No 2) [2016] 4 HKLRD 113 has upheld the Council’s confidentiality requirement and continued an injunction prohibiting the publication of any “leaked” information and materials relating to some of the members’ discussions made at the Council’s meeting before making the Decision.

17. It is also noted that between November 2014 and the Council’s meeting on 29 September 2015, there had been various newspapers articles published and statements issued by some teaching staff of the HKU concerning the selection of the candidate for the Post. In gist:

(1) Wen Wei Po reported that there were rumours that the Candidate had been selected by the Search Committee as the only recommended candidate for the Post.

(2) Articles in Wen Wei Po and Tai Kung Po[4] had made various comments and criticisms as to the suitability of the Candidate for the Post, in particular in relation to allegations that the Candidate had supported the then occupy central movement. It also commented that the Candidate had strong political views and questioned whether he was capable of fulfilling his duty as a PVC impartially.

(3) At the same time, some newspapers and media such as Mingpao Daily, Apple Daily and RTHK started to publish articles[5] alleging suspected political interference of this appointment.

(4) There were also articles published in Hong Kong Economic Journal and Mingpao Daily[6] and an interview report of an academic published in Apple Daily[7] whereby concerns about the issues of academic freedom and institutional autonomy of the HKU were raised.

(5) On 30 July 2015, a Joint Statement was issued on behalf of ten Deans of Faculties of the HKU in which it was stated that “academic freedom and institutional autonomy, guaranteed by BL137, are the...

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