The University Of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd And Another

CourtHigh Court (Hong Kong)
Judgment Date08 July 2016
Citation[2016] 4 HKLRD 113
Judgement NumberHCMP2801/2015
Subject MatterMiscellaneous Proceedings
HCMP2801C/2015 THE UNIVERSITY OF HONG KONG v. HONG KONG COMMERCIAL BROADCASTING CO LTD AND ANOTHER

HCMP 2801/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2801 OF 2015

____________

BETWEEN
THE UNIVERSITY OF HONG KONG Plaintiff
and
(1) HONG KONG COMMERCIAL BROADCASTING CO LTD 1st Defendant
(2) THE PERSON OR PERSONS UNKNOWN
who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication the confidential information in respect of the Relevant Meetings (as defined in Part A of Schedule 1 of the Amended Originating Summons) of the Council of the Plaintiff, excluding the information that is already in the public domain (as set out in Part B of Schedule 1 of the Amended Originating Summons)
2nd Defendant

____________

Before: Hon G Lam J in Court
Date of Hearing: 23 May 2016
Date of Decision: 8 July 2016

_____________

D E C I S I O N

_____________

Introduction

1. In this action the University of Hong Kong (“the University”) seeks declaratory and injunctive relief to preserve the confidentiality of the meetings of its Council (“the Council”). The Council is the supreme governing body of the University, with “all the powers and ... all the duties of the University other than those vested ... in some other authority of the University or in an officer” (s. 7(3) of the University of Hong Kong Ordinance (Cap. 1053)). Such other authorities of the University include the Senate, which is the organ entrusted with the power of regulation of all matters relating to education in the University, and the Convocation, which is essentially an advisory body.

Background

2. The events leading to these proceedings may be summarised as follows.[1] In around February 2014, the University set up a search committee to identify appropriate candidates for the position of Vice‑President & Pro Vice-Chancellor (Academic Staffing & Resources). On 26 November 2014, the newspaper Wen Wei Po revealed that Prof Johannes Chan, former Dean of the Faculty of Law of the University, had been recommended by the search committee for the post. Wen Wei Po questioned whether Prof Chan was a suitable candidate having regard to his alleged ties with a co‑founder of the Occupy Central campaign who was also a member of the Faculty of Law. There were further subsequent articles in Wen Wei Po and Ta Kung Po criticising Prof Chan, one of which, citing from a leaked University Grants Commission report, claimed that his academic record on research was not up to international standards when he was Dean of the law school. In February 2015, the newspapers Ming Pao and Apple Daily published articles suggesting that senior government officials had lobbied certain members of the Council not to appoint Prof Chan to the post.

3. The position of the University in these proceedings is that it has never announced the identity of the candidate recommended for the post. In keeping with its general media policy not to comment on any media report made in relation to purportedly leaked information from the University, it could not verify and has not verified the events referred to in these press reports.

4. On 30 June 2015, the agenda item “to receive a paper on the appointment of Vice-President & Pro Vice-Chancellor (Academic Staffing & Resources)” was first placed before the Council at its meeting. This matter had not been considered by the Council at any time before 30 June 2015. The Council resolved to postpone consideration of this item (“Appointment Issue”) until after the appointment of the new Provost. At the following Council’s meeting on 28 July 2015, it discussed the decision made at the meeting on 30 June 2015 and the possible alternative approaches to deal with the issue. The Council’s deliberations on the matter ceased when the meeting was adjourned due to disruption by non‑invited parties who entered the meeting room and refused to leave. Prof CM Lo, one of the members of the Council, fell down during the chaotic incident and suffered minor injury.

5. Meanwhile a concern group was set up by certain graduates of the University who conducted various activities, including convening an extraordinary general meeting of the Convocation of the University and initiating a petition, to urge the Council to make the appointment in accordance with the recommendation of the search committee.

6. At a meeting held on 25 August 2015, the Council resolved that it would consider the recommendation of the search committee for the post in September.

7. At the following meeting, held on 29 September 2015 (“29 September 2015 Meeting”), the paper of the search committee dated 15 June 2015 (and revised on 3 September 2015) was placed before the Council for the first time and received by the Council. Prior to this the Council had not received any document or formal notification regarding the identity of any candidate for appointment to the post.

8. The meeting, which also considered various other items concerning the financial affairs and the management of the University, started at 5 pm and lasted until approximately 7:30 pm. Discussions on the Appointment Issue lasted for about an hour in which more than 15 members expressed their views. In the end, the Council resolved by a majority vote (in secret ballot) not to accept the search committee’s recommendation for the post.

9. The Council itself did not make or authorise anyone to make any audio recording of this meeting (or indeed any other of its meetings). All attendees, including members of the Council, the registrar, legal advisers and University staff except for one person (Dr Steven Cannon) who was in charge of the security arrangements for the meeting, were requested to hand in their mobile phones which were then put in individual sealed envelopes.

10. Immediately after the 29 September 2015 Meeting, the Chairman said at a news conference that the decision was based on “the best and long term interests of the University” but did not elaborate on the details of the discussions that had taken place at the Meeting.

11. In that same evening, very soon afterwards, a member of the Council, Mr Billy Fung, held a press conference during which he attempted to summarise some of the discussions on the Appointment Issue and disclosed certain statements said to have been made by specified members of the Council during the meeting against Prof Chan, as follows:

(1) Prof Arthur Li queried Prof Chan’s credentials for not including a doctorate degree and suggested that the only reason why he had previously been appointed as the Dean of the Faculty of Law of the University was that he was a “nice guy”.

(2) Ms Leonie Ki, Ms Margaret Leong and Mr Benjamin Hung questioned Prof Chan’s integrity and criticised him for having disclosed publicly that he was the sole recommended candidate before the Council had made a decision on the Appointment Issue.

(3) Prof Edward Chen also queried Prof Chan’s qualifications for not including a doctorate degree, and stated that he had rarely published articles in academic journals, and questioned his qualifications in comparison to the other Vice‑Presidents and Pro Vice‑Chancellors of the University.

(4) Prof CM Lo stated that Prof Chan was academically not up to the requisite standard and that his research achievements would compare unfavourably with those of an assistant professor. He also criticized Prof Chan for not showing sympathy towards him after he suffered injury on 28 July 2015.

(5) Mr Martin Liao said that he had made a search on “Google Scholar” and found that there were only four searches made on Prof Chan’s works in the past five years.

(6) Dr Rosanna Wong opined that the appointment of Prof Chan would only further divide the University.

12. On 30 September 2015, the Chairman of the Council issued a statement condemning Mr Fung’s action as a serious breach of the confidentiality of the discussions of the Council. The alleged breach of confidentiality by Mr Fung was tabled for consideration by the Council at its meeting on 27 October 2015. In the event, that item was adjourned in order to provide additional time for Mr Fung to respond.

13. It transpired that an audio recording of at least part of the 29 September 2015 Meeting had been made by an unidentified person (“the Unknown Person”) without the knowledge or consent of any other person present or the authority of the University. On 28 October 2015, an audio recording of part of the 29 September 2015 Meeting, featuring the speech of a Council member, Prof Arthur Li, concerning the Appointment Issue was broadcasted on one of the radio channels operated by the 1st defendant (viz Commercial Radio I). The recording was also accessible on the 1st defendant’s website at www.881903.com. A transcript of the recording was published on the Facebook page of the programme.

14. Following this broadcast, solicitors who acted for the University wrote urgently to the 1st defendant asking for an undertaking to remove all audio recording of the 29 September 2015 Meeting from its website and to refrain from making any further disclosure of any audio recording of meetings of the Council.

15. Notwithstanding the solicitors’ letter, on 30 October 2015, the 1st defendant broadcasted in the same programme another audio recording of part of the 29 September 2015 Meeting on the Appointment Issue, featuring the speech of a second Council member, Ms Leonie Ki. The recording and a transcript of it also became accessible on the 1st defendant’s website and its Facebook page.

16. In the afternoon of the same day, the University applied ex parte to the Court of First Instance for and obtained from Deputy Judge Seagroatt an interim injunction against further disclosure. The originating summons formally commencing the...

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    • 21 May 2020
    ...that person, with amendment later if his identity becomes known: see University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd [2016] 4 HKLRD 113, per G Lam J at §§52-3. This procedure was designed only to alleviate the need to name a defendant where it was impossible to do so and ......
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    ...that person, with amendment later if his identity becomes known: see University of Hong Kong v Hong Kong Commercial Broadcasting Co Ltd [2016] 4 HKLRD 113, per G Lam J at §§52-3. This procedure was designed only to alleviate the need to name a defendant where it was impossible to do so and ......
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    ...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......
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    ...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......
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