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HKU council controversy

Judicial reviews in University of Hong Kong case thrown out because issue is now ‘academic’

Judge refuses applications in case involving university’s decision not to make liberal scholar Johannes Chan pro-vice-chancellor

PUBLISHED : Friday, 13 April, 2018, 8:14pm
UPDATED : Friday, 13 April, 2018, 11:49pm

The High Court has thrown out two judicial reviews challenging the controversial decision by the University of Hong Kong’s ruling council not to appoint liberal scholar Professor Johannes Chan Man-mun as pro-vice-chancellor two years ago.

Mr Justice Thomas Au Hing-cheung on Friday refused the applications lodged by then student union leaders Billy Fung Jing-en and Colman Li Fung-kei in December 2015 “for the reason that the intended judicial reviews have become academic” and would serve no practical purposes. 

“The court should not entertain it,” he wrote in a 25-page judgment. 

Chan’s appointment was recommended by a search committee set up by the council to fill the long-vacant post of pro-vice-chancellor (academic staffing and resources), who would be responsible for the university’s academic resources allocation and all facets of faculty recruitment, retention and professional development. 

However, his bid was cut short on September 29, 2015 after the council voted 12-8 against the appointment following a string of accusations published in pro-Beijing newspapers against him. Then council chairman Dr Leong Che-hung said members had rationally debated for “the best interest for the university”. 

The collateral damage at HKU of the Johannes Chan Man-mun decision

The decision sparked controversial debates on academic freedom and the university’s institutional autonomy, with some media reports alleging suspected political interference.

Students also responded with class boycotts, and the chaotic siege of a council meeting the following January. The events led to Fung and Li being given 200 to 240 hours of community service after they were found guilty of a string of criminal charges that included disorderly conduct in a public place, and criminal damage. 

The post was later filled by psychology professor Terry Au Kit-fong, who was appointed on May 31, 2016. The council’s membership has also materially changed since the decision.

Fung and Li applied for a judicial review seeking declarations that the decision was procedurally improper, and the council had failed to protect the university’s institutional autonomy and academic freedom as its decision was not supported by adequate reasoning. 

Their counsel, Gladys Li SC, argued that the case raised a reasonably arguable question of whether the council had a duty to protect the institutional autonomy and academic freedom provided by the Basic Law. 

She said the court should clarify these important aspects of the law and give guidance for the council’s future conduct. 

The judge though sided with Benjamin Yu SC, who argued for the council that the proposed judicial reviews would serve no useful purpose as the post would not be vacant for at least another three years, and there could be no reasonably arguable case against professor Au’s appointment, or for her removal. 

Justice Au also concluded that the question was “highly contextually based”, with no evidence to show that a large number of similar cases are anticipated. 

“I will therefore refuse to grant leave on this basis alone,” he said. 

Fung had no comment regarding the court’s ruling.