Prof Chan, Chair Professor in the Dept of Electrical Engineering at CityU, made a funding application to RGC in April 2013. He included a Figure with no reference to the original source. When asked by RGC about the lack of acknowledgement for the Figure, Prof Chan replied it was due to oversight. He apologised and asked for the Figure to be withdrawn. RGC did not allow it. RGC asked CityU to investigate a possible case of plagiarism. CityU’s Investigation Panel (endorsed by their VP(R&Tech) found no evidence the omission of the source was intentional, the matter was likely to be an oversight than intentional plagiarism, and the alleged misconduct was not substantiated.
RGC’s Investigation Working Group, however, referred to the alleged misconduct as “plagiarism”, agreed the omission was not intentional, but also agreed Prof Chan should be disqualified from funding (known as “debarment”). RGC’s Disciplinary Committee (“DC”) referred to the misconduct as “plagiarism”, insisted Prof Chan should bear responsibility for his application and recommended debarment of 1-2 years. RGC endorsed the DC Chairman’s recommendations and imposed a penalty of 2-year debarment. Prof Chan appealed. RGC’s DC (Appeal) agreed that lack of intention should not affect liability for plagiarism, but should operate as a mitigating factor for the penalty to be imposed. It considered the charge of plagiarism substantiated and recommended a 2-year debarment. RGC endorsed DC (Appeal)’s recommendation. Prof Chan challenged the decision in a judicial review.
The CFI (Queeny Au-Yeung J) dismissed the judicial review. On justiciability, the court held that a challenge to an academic judgment requiring knowledge of academic conventions was non-justiciable. So an adjudication on whether plagiarism requires an element of intention or whether Prof Chan committed plagiarism was non-justiciable. But matters of procedural fairness were justiciable. It had not been shown that the definition of plagiarism applied by RGC was perverse or irrational. There was no procedural unfairness committed by the DC and DC (Appeal) except the failure to disclose a distinguishable precedent and use of the wrong penalty guidelines. But as the penalty had been served and the judicial review had become academic, the court exercised its discretion not to grant relief.
Analysis:
It should be noted that the RGC’s definition of plagiarism, which does not include the element of intention, is similar to HKU’s definition, as amended recently in November 2018 with effect from the 2019-20 academic year. This new HKU definition is as follows: “Plagiarism is the use of another person’s work (including but not limited to any materials, creations, ideas and data) as if one’s own without due acknowledgement, whether or not such work has been published and regardless of the intent to deceive” (emphasis added) (see section 3.1 of the HKU Policy on Research Integrity, see http://www.rss.hku.hk/integrity/rcr/policy).
