|SECTION I - INTRODUCTION|
This enquiry arose out of an article under the name of Dr. Chung titled "Pressure to stop opinion polls not welcome", which appeared in the South China Morning Post on 7th July 2000.
This article stated, inter alia: "Last year, more than once, I was given a clear message from Mr. Tung via a special channel that my polling activities were not welcomed. Mr. Tung did not like me polling his popularity, or the Government's credibility. I was told that he did not like to see universities involved in such activities and that our polls should stop."
The article, which, without more, would have raised a storm of controversy, had assistance in so doing from a frontpage story under the headline "Tung tried to warn me off, says pollster".
The most pertinent passage of which reads:
A leading pollster says Tung Chee-hwa has pressured him to stop carrying out surveys of Mr. Tung's popularity and the Government's credibility.
Robert Chung Ting-yiu of the University of Hong Kong said that more than once last year the Chief Executive had given him a clear message "via a special channel" that his surveys were not welcome. "Mr. Tung did not like me polling his popularity or the Government's credibility. I was told that he did not like to see universities involved in such activities and that our polls should stop", he said, writing in today's South China Morning Post.
Speaking last night, Mr. Chung, head of the university's Social Sciences Research Centre, said he had had a "very clear and serious" message.
Asked about his response, he said: "I certainly was very unhappy."
He declined to say when the message was passed or the circumstances, but said he felt under pressure. "He very much did not want me to continue with our polls. [But] I made clear we couldn't have any restriction zones...That's unethical."
Dr. Chung, who was unaware that his article was to be made a cover story, was, in the days that followed under great pressure to reveal the name of the "special channel" referred to in his article.
On 14th July, 2000 Dr. Chung issued a Chinese press statement titled "Elaboration of Robert Chung on Chief Executive Polling" which was accompanied by a chronology. In his press statement he said: "...After the publishing of the article, under the huge pressure of the government and the media, it is not convenient for me to contact the messenger: one of my most respected figures, my teacher. Without his assent, I could not place him under such enormous pressure..."
He went on to say: "...I have decided to disclose the identity of the "third party": he is the Vice Chancellor Cheng Yiu-Chung. I will give an account of the course and content and time regarding the relaying of the message. I do not have any agreement with Vice-chancellor Cheng Yiu-Chung. There exists no moral obligation to protect the source of the information nor the moral obligation to keep confidential the content of a closed-door conversation. As my teacher has indicated that he respects my decision, I have performed the obligation of an apprentice toward his master. Regarding how the University will handle this issue, how my credibility will be evaluated by society, these are none of my concern."
The identity of the person referred to as the messenger was revealed in the chronology annexed to this elaboration:
Jan 29 (Fri) 9:30 am
CE told VC that he did not like HKU to be involved in conducting opinion polls on CE's popularity and SARG performance.
It was now clear that Dr. Chung was saying that the Chief Executive had sent him a message through the Vice-Chancellor which had been relayed to him by Professor S.L. Wong. He went on in his chronology to say that there had been a further message from the Vice-Chancellor:
"Nov 1 (Mon) 10:30 am
RC to answer VC whether POP would stop polling on CE and SARG. At the same meeting, RC submitted a paper to the VC explaining POP's activities, in order to explain "the way our work has been misread, or misunderstood, by the Chief Executive"."
We refer only to 2 passages from the long question and answer session that followed the issue of the press statement by Dr. Chung:
"Today I am still speaking of my personal experience. Through Prof. Wong, the Vice-chancellor passed the message to me, especially the meeting in November last year, the message I received was, the Vice-chancellor requested me to stop my work, my research work. During the conversation, I raised what the effects would be if I refused to stop my research work. The message I perceived at that time was, the Vice-Chancellor would 'dry up' my funding. However I thought that it was only a saying at one time. We continue to work, even though pressure still exists. My article does not intend to challenge the University. If the University does interfere me, my article will not write in this way. My motive is very simple, that is the CE should not interfere academic research.
"...The conversation took place on 1 November 1999. At that time, we had talked a lot. There was a very clear message, I could still remember up till now, the Vice-chancellor requested me to clarify as soon as possible whether I would continue my polls. I have some discussions with Prof. Wong regarding this point. One of the discussions was what the effects would be if I did not stop the polls. The message I got was that if we were to continue with them, the Vice-chancellor would gradually 'dry-up' [our resources]. The term 'dry up' was made by someone, that was really true. But in fact that did not happen. As we are self-financing centre, we are still working well. Besides, I would like to give a positive message, since I feel pressurized, a lot of university colleagues show their support to me."
The allegation of interference with academic freedom by the Chief Executive, the Vice-Chancellor and the Pro-Vice-Chancellor, Professor S.L. Wong was so grave that the University Council, by resolution of 25th July 2000, set up this enquiry in the following terms.
"The Council of the University of Hong Kong, affirming the importance of academic freedom and institutional autonomy, resolved to appoint three independent persons under Statute XIX paragraph 2a with the following remit: as certain the facts surrounding the allegations made by Dr. Robert Chung in his article in the South China Morning Post on 7 July, 2000 and in his statement to the media on 14 July, 2000 report to the Council in writing on the panel's findings together with the panel's opinion pursuant to such findings and recommendation (if any) for action by the Council. The University Council recognizes that there may be issues beyond the remit of the investigative panel and of the University Council itself, which are matters left with the relevant authorities within the community of Hong Kong."
The Panel which was appointed consisted of Sir Noel Power, Mr. Ronny Wong S.C. and Mrs. Pamela S.W.Chan.
The Council was satisfied that the Panel, as an independent body, should proceed with the fulfilment of its remit in such manner as it saw fit. The Panel was however asked to bear in mind the issue of "transparency". With that in mind the Panel on 31st July issued the following rules governing the hearings which it was to conduct.
"Set out hereunder are the rules governing the hearings by the Investigation Panel ('the Panel') appointed by the Council of the University of Hong Kong to ascertain the facts surrounding the allegations made by Dr. Robert Chung Ting-yiu in his article in the South China Morning Post on 7th July 2000 and his statement to the media on 14th July 2000.
Application of the Rules These rules will apply both to the preliminary hearing to commence at 10:00 a.m. on Wednesday 2nd August at the Hui Pun Hing Lecture Hall, Library Extension Room 1, The University of Hong Kong and to the full hearings to take evidence to commence at 10:00 a.m. on Monday 7th August at the Hui Pun Hing Lecture Hall.
The hearings of the Panel will be open to the public.
Witnesses who appear and give evidence at the hearings may, if they wish, be represented by Counsel.
Hours of Sitting
The hours of sitting will be from 10:00 a.m. to 1:00 p.m. with a short mid-morning adjournment and from 2:30 p.m. to 4:30 p.m.
Procedure and Evidence
The rules of procedure and evidence which govern hearings in a court of law will, as necessarily modified, be applied except that the Panel will not be bound by the ordinary rules of evidence but will, at its discretion, hear any evidence which it considers relevant and will apportion such weight thereto as it sees fit.
The rules of decorum which apply in a court of law will be observed. Silence will be maintained while the Panel is in session. Two single video cameras at a non-adjustable single fixed angle set up to provide live continuous pool feed coverage to all interested broadcast media outlets will be allowed. Once set, the camera cannot be moved during the course of the hearing.
Neither cameras (still or otherwise) nor photographs nor tape recorders will be allowed inside the hearing room. The relevant broadcast media in Hong Kong agree as to who will provide both the camera and the pool feed which must be accessible to all who request it.
Summoning of Witnesses
Officers of the University who the Panel considers may have relevant evidence will be required to attend to give evidence and to produce documents. Other persons who the Panel considers may have relevant evidence will be invited by notice in writing to attend to give evidence and to produce documents.
Cross-examination and addresses
Witnesses may be cross-examined by other persons giving evidence or their representatives. Each witness or his representative may make a final address to the Panel. The order of cross-examination and of final address will be as directed by the Panel. The Panel may give directions, should it deem it necessary, as to the time allowed for cross-examination of a witness and for final address. Witnesses may give evidence in Cantonese or in English but evidence of a conversation must be given in the language used in that conversation. Communication to or by Members of the Panel Panel members will not discuss matters the subject of or pertaining to these proceedings with witnesses, their representatives, members of the public or the press during the currency of these proceedings or at any time thereafter. The Panel's report of these proceedings will be made in writing to the University Council as soon as possible after the conclusion of the hearings.
The Panel, should it deem it necessary, may add to, modify or recast any of the above rules."
Rule 6 was later enlarged to allow a greater coverage by the media.
Rule 9 was expanded to cover Counsel assisting the Panel and the Solicitors instructing him.
A preliminary hearing was held on 2nd August at the Hui Pun Hing Lecture Hall in the University to identify the witnesses who might be called and the hearing proper commenced on Monday, 7th August at that Hall.
When dealing with the evidence of the witnesses we take them in the order which best allows an understanding of the way in which the matter unfolded.
The Panel adopted a definition of academic freedom which we set out as follows1:
"Traditionally academic freedom refers to the liberty of a person to carry on intellectual investigation in a scholarly manner within the structure of the academic community. In current secular terms, it is typically defined more narrowly as "the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence, without any control of authority except the control of the authority of the rational methods by which truth is established."2
It is the secular definition that serves as the model for much of the discussion today.
When considered in this way, as a process, it includes: the unhindered freedom to explore a given subject to the extent that our rational powers of investigation are capable; and the freedom to do so without influence or pressures external to the process.
This definition was put to all the principal witnesses and none took any exception thereto.
The Panel had no power to swear witnesses or to require them to give evidence.
The Chairman however reminded each witness of the importance of the inquiry and of the need accurately to recall events about which he or she was giving evidence and truthfully to recount them to the Panel.
University witnesses were required to attend the Panel's hearings and invitations were sent to two other witnesses who it was considered might have evidence which could assist the Panel.
Mr. Lo agreed to attend but the Chief Executive, Mr. Tung Chee-wah, declined the invitation on the grounds that he does not have any relevant information to give to the Panel and that he is not a person potentially affected by the findings of the Panel.
Mr. Patrick Fung S.C., instructed by Messrs. Johnson Stokes & Master, was counsel assisting the Panel.
Mr. Warren Chan S.C., assisted by Mr. Liu Man-kin and instructed by Messrs.
Herbert Smith represented the Vice-Chancellor.
Mr. Alan Hoo S.C. assisted by Mr. Johnny Mok and instructed by the Department of Justice represented Mr. Lo.
No other parties were represented.